England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand,
		29 August 2008

Lord Justice Thomas;

1. In this second judgment of the Court in relation to the application of BM, we take the facts as fully set out in our judgment given on 21 August 2008. [2008] EWHC 2048 (Admin). We stated that we would hold a further hearing on Wednesday 27 August 2008 to consider the issues relating to the public interest in the exercise of our discretion and any claim made by the Foreign Secretary to public interest immunity in respect of the information. That further hearing was made possible by the diligence of solicitors, counsel and their supporting teams in difficult circumstances.

Developments since the first judgment was handed down on 21 August 2008

(i) The first letter from the State Department

2. Later on 21 August 2008, Mr, John B. Bellinger III, Legal Adviser to the Department of State, wrote to Mr Daniel Bethlehem, QC, the Legal Adviser to the Foreign and Commonwealth Office, After reiterating that public disclosure of the documents or information contained in them would be likely to result in serious damage to the United States national security and could harm existing intelligence information sharing arrangements between the United Kingdom Government and the United States Government, the letter stated that the office of the Chief Prosecutor in the Office of Military Commissions had informed him that the Chief Prosecutor's office had reviewed the 44 documents identified by the United Kingdom Government and had agreed:

"First, the documents will be provided to the convening authority at any time upon her request, subject only to the condition that the names of American and British government officials and the locations of intelligence facilities will be redacted from the documents prior to their being provided. Counsel for [BM] are free to suggest to the convening authority that she make such a request. Under this framework, the Convening authority would have every opportunity to consider these documents.

Second, the documents, as redacted, will be produced to [BM]'s detailed military counsel within the military commission proceedings at the normal discovery phase of the process once the standard military commissions protective order has been entered. This agreement ensures that the information wilt be available to defense counsel when the adversarial trial to adjudicate guilt or innocence commences, should the convening authority refer charges to a military commission."

3. The letter made it clear that it would be inappropriate for the documents to be disclosed to BM's lawyers for use by them before the Convening Authority and they would only be disclosed during the normal discovery phase of the proceedings. This was because the role of the Convening Authority was limited to the decision to refer charges and it was not the adversarial phase of the Military Commission's proceedings where the allegations of the United States Government would be tested. The letter also made clear that the documents would only be disclosed to Lt. Col. Bradley and not to civilian defence counsel, Mr Stafford Smith. The letter further noted that this did not preclude the possibility of disclosure also to his civilian defence counsel upon his application to the military commission. The letter went on to make clear that the agreement by the Chief Prosecutor in relation to the documents was on terms that they would not otherwise be released or disclosed as part of the proceedings before this Court.

(ii) The Foreign Secretary's PII Certificate

4. , In the short closed hearing after the first open judgment was handed down on 21 August the Court directed that the Foreign Secretary serve any certificate claiming Public Interest Immunity from the disclosure of the information by 4pm on Friday, 23 August. In the event because of ongoing discussions with the Government of the United States and the submission of materials to the Foreign Secretary In relation to the damage to the national security of the United Kingdom and the international relations which it was said would be occasioned by the disclosure, the Certificate was not served until the morning of Tuesday, 26 August, to the Certificate the Foreign Secretary concluded at paragraph 7 that the public interest:

"dictates that disclosure of the information in question should take place in a manner consistent with the undertaking of the United States to provide this material and should not take place by order of our Courts or otherwise by the United Kingdom authorities. In so concluding, I underline the conclusion in the Court's judgment that the United Kingdom Government considers that the material in question should be made available to [BM]'s US counsel. Consistent with the undertaking of the United States, and my conclusion as to the proper balance of the public interest, the United Kingdom Government will continue to engage with the relevant US authorities to ensure that such disclosure does indeed take place."

5. The reasons the Foreign Secretary gave for that conclusion can be summarised as follows:

i) National security considerations weighed more heavily in the case of relations with the United States than with any other country, The advice the Foreign Secretary had received was that disclosure of the documents by the order of the Court or otherwise by the United Kingdom authorities would seriously harm the existing intelligence sharing arrangements between the United Kingdom and the United States and thereby cause considerable damage to the national security of the United Kingdom, The US administration had made this clear through senior officials, both orally and in writing.

ii) The intelligence relationship between the United States and the United Kingdom was vital to the national security of the United Kingdom. It was essential that the ability of the United States to communicate in confidence with the United Kingdom was protected. Without that confidence the United States Government would not share information in an open manner as was currently the case.

iii) Disclosure by order of the United Kingdom courts would introduce new and, in the mind of the United States Government, uncertain dimensions to a set of practices that currently rested upon certainty.

iv) Apart from the damage to the relations between the United States and the United Kingdom Governments, the international relations of the United Kingdom more generally would be damaged as would liaison relationships with third parties.

v) The letter from Mr Bellinger to which we have referred at paragraph 2 made it clear that the offer to disclose was on the understanding it would avoid and prevent further disclosure in the United Kingdom.

vi) The utmost importance had to be given to the Court's assessment that the provision of the documents was essential to BM's defence to the very serious charges he faced. The Foreign Secretary might well have been inclined to reach a different conclusion on the balance of the public interest if the United States authorities had not agreed to make the commitment set out in the letter of 21 August 2008. However, as that commitment had been made, he had balanced the interests of national security and damage to international relations against the interests of disclosure, He was satisfied that the balance of the public interest did not favour disclosure by order of our Courts, given the commitments set out in Mr Bellinger's letter of 21 August, which he considered would ensure that the interests of justice would be served.

vii) The certificate also covered the issue raised by us at paragraphs 4 and 86 of the first open judgment in relation to passages we redacted from the open version of the judgment. In forming the view that a certificate should also extend to those paragraphs of the judgment, the concern of the United States Government was put in these terms:

"The strongly expressed concerns of the US Government weigh even more heavily in relation to questions of disclosure of information derived from the documents in question into the public domain, as this would involve the disclosure of highly classified intelligence information into the public domain without any safeguards as to its further use,"

In the light of that view the Foreign Secretary concluded that although he was sensitive to the need for there to be as far as possible open administration of justice, he was satisfied that there were compelling reasons going to the national security of the United Kingdom and prevention of harm to the international relations of the United Kingdom that dictated that the information in question should not be disclosed info the public domain by restoring the redacted paragraphs to the judgment.

6. The Certificate was supplemented by a Sensitive Schedule which set out essentially the evidence on which the Foreign Secretary relied for the reasons and conclusions set out in the Certificate, That was considered by us in the closed hearing.

(iii) The evidence of Mr Stafford Smith

7. In a witness statement made on 26 August 2008, Mr Stafford Smith set out the reasons why Lt. Col. Bradley and he considered that the type A documents should he disclosed to them, These may be summarised as follows:

i) It was not possible to put forward BM's case if the names of the relevant agents and relevant facilities were redacted, It would not be possible to secure witnesses or challenge the US Government's refusal to call witnesses if they were not identified. Furthermore, it was essential to see the names of the facilities as it was important to know where BM was during the two year period.

ii) There was no reason why such information could not be provided to Lt. Col. Bradley who had Top Secret clearance.

iii) It was shocking that the military prosecutors would only provide the evidence if the Convening Authority requested it There was an absolute duty to disclose favourable evidence without a request by the defence.

iv) The idea that the burden should lie on the defence to ask the Convening Authority to request information when the defence was not privy to that information, was bizarre. Previous attempts to persuade the Convening Authority to request the documents had bad no apparent effect. In these circumstances the offer to produce materials if the Convening Authority requested them had no meaningful content.

v) There was no reason why exculpatory evidence could not be provided to defence counsel at this stage. Both Mr Stafford Smith and Lt. Col. Bradley had signed documents committing them to honour the protective rules of the military commission process and three protective orders had been made on 24 January 2006.

vi) The position of the military prosecutors gave no real comfort. A letter dated 24 August 2008 from Col Lawrence J. Morris, the US Army Chief Prosecutor, contained the following passages:

"It is important to understand that these commitments were made in the context of a direct request from the Government of the United Kingdom in order to clarify an issue contested in UK court proceedings; whether the 44 documents in question would be provided to defense counsel in the military commissions process. Our commitments were not a concession that the documents were exculpatory. In an extraordinary accommodation of foreign court proceedings, we decided to commit to providing this information during the (post-referral) discovery phase of military commission proceedings to obviate the need for the court to struggle through determining the requirements of the U.S. law, regardless of whether this information is exculpatory.

As you also know, we are not obliged to raise "exculpatory matters" to the convening Authority at the pre-referral stage, but it is generally a wise prosecution practice to do so, especially in the military commissions process."

vii) On 25 August 2008 Lt Col Bradley wrote to the Converting Authority asking the Convening Authority to confirm that they had requested the documentation which the United States Government had agreed to provide. They also made a request of the Convening Authority that they be copied with the documentation provided. No positive response had been received.

(iv) The. second letter from the Stale Department

8. Shortly before the Court sat on Wednesday 27 August 2008 we received a further letter from Mr Bethlehem QC, the Legal Adviser to the Foreign and Commonwealth Office, setting out an extract from a further letter from the State Department That was a letter from Mr. Stephen Mathias, the Assistant Legal Adviser to the State Department who has responsibility for the issues with which we are concerned, and was expressed to be "by way of update". Mr. Mathias stated:

"1. The Legal Advisor to the Convening Authority today requested the documents at issue, He has now received all of the documents and has committed to turn them over to the Convening Authority when he presents his pre-trial advice to her for her decision on whether to refer the case for trial. Thus, the Convening Authority will have all of these documents before her prior to making a decision on whether to refer the case, (Importantly, the Convening Authority, under the laws and rules governing military commissions, cannot refer charges without first receiving formal advice from the Legal Advisor to the Convening Authority, which we now know has not yet occurred. Accordingly, the Convening Authority will, without question, receive the documents before she makes her referral decision).

2. In accordance with the Manual for Military Commissions Rule 701, the papers accompanying the pre-trial advice are automatically disclosed to defense counsel in the event that the case Is referred. Accordingly, if the ease is referred for trial, defense counsel will be provided with all the documents. Since the documents are classified, this disclosure would be made under the rules and protections for the disclosure of classified information established in the Military Commissions Act and a protective order issued by the military commission judge. Because of General Hartmann's commitment, Rule 701 guarantees that the documents will be disclosed to defense counsel by operation of law if the case is referred for trial. This development supplements the firm commitment of the Chief Prosecutor (which was memorialized in John Bellinger's letter of August 22) to disclose these documents to defense counsel at the discovery phase of military commission proceedings whether they were exculpatory or not, if the ease is referred for trial.

3, Needless to say, this is a significant development. To the extent that the UK proceedings are currently aimed at ensuring that the documents at issue will he before the Convening Authority before she makes her referral decision, this development further demonstrates that the relief sought through these proceedings has been otherwise accomplished and no further action by the court is required. Ordering the disclosure of US intelligence information now would have only the Marginal effects of serious and lasting damage to the US-UK intelligence sharing relationship, and thus the national security of the United Kingdom, and of aggressive and unprecedented intervention in the apparently functioning adjudicatory processes of a long-time ally of the United Kingdom, in contravention of well established principles of international comity."

9. It appears, therefore, that this second letter effects a further significant change in the position of the Government of the United States; the provision of the documents to the Convening Authority is no longer dependent upon a request from the Convening Authority, The Legal Advisor to the Convening Authority has undertaken to provide them to the Convening Authority when he presents his advice cm whether the case should be referred for trial.

The effect of the change of position by the Government of the United States.

10. Considered together, the two letters from the State Department constitute a significant and welcome change in position by the Government of the United States, This inevitably has an important bearing on the claim by the Foreign Secretary for public interest immunity and the exercise by the court of its discretion as to whether to order disclosure.

i) Disclosure of the documents to BM's lawyers if the charges are referred,

11. It was contended by BM's lawyers that disclosure in redacted form will be insufficient in two respects

i) The location of the facility of his detention. As is clear from our summary of the facts at paragraph 87 of the first open judgment, the only reports relating to the treatment of BM contained in the documents related to the May interviews in Karachi, No information was supplied to the United Kingdom. Government about his location or treatment after May 2002, save that he was held incommunicado, that detention was not at a United States facility, but at a facility of a foreign government other than Afghanistan and that the United States had direct access to information being obtained from him. There is nothing in the documentation which gives the name or location of the facility of his detention beyond this.

ii) The names of individuals. There is nothing in the documents that identifies the names of individuals relevant or material to the detention or treatment of BM.

12. BM's lawyers next contended that they have no confidence that the US Military Prosecutors will disclose the information to them either in a timely manner or without much prevarication

i) At paragraph 126(i) of our first open judgment we recorded the position of the Foreign Secretary that he did not rely upon the Military Prosecutors disclosing the information. The reasons were set out in the closed judgment.

ii) Although the letter of Col. Morris, the Chief Military Prosecutor, dated 24 August 2008 is not entirely easy to follow, it has been made clear by the United States Government to the two letters from the State Department that the documentation will be disclosed by the Military Prosecutors m the manner specified. It would not he appropriate for us to consider in this judgment the reasons for this change in position by the United States Government,

iii) Nor would it he appropriate for this court, at present, to seek to go behind the clear assurances which have now been provided by the United States: Government to the Foreign Secretary, We proceed on the basis that these assurances will be honoured. It will be readily appreciated by all concerned that these assurances now provide the essential basis of the Foreign Secretary's submission on public interest immunity and the exercise of discretion to refuse disclosure,

iv) As to the timing of the disclosure, we have expressed our view that disclosure was urgent because BM has been held without trial for over 6 years and Ms mental health has deteriorated. (See paragraph 126 (vi) of the first open judgment.) The second letter from the State Department now makes clear that if charges are referred the documents will be provided at the same time as the charges,

13. Thus, if the charges are referred, the documents will be provided immediately and in a form which does not in our judgment disadvantage BM in any material way, BM has therefore obtained as a result of the discussions between the Government of the United States and the Government of the United Kingdom, after our first judgment, all that the court could have granted in this respect and that the court considered essential for a fair trial in the event the charges were referred.

ii) The provision of documents to the Convening Authority,

14. The documents have all been made available to the Legal Advisor to the Convening Authority who has undertaken to supply them to the Convening Authority when he presents his advice on whether the case of BM should be referred for trial. Here again BM has obtained in this respect as a result of the discussions between the Government of the United Kingdom and the United States Government, after our first judgment, all he could have obtained from this Court in this respect.

(iii) The provision of documents to BM '$ lawyers so that they could make submissions to the Convening Authority,

15. BM's lawyers contend that disclosure should be made to them so that they can advance argument to the Convening Authority. They maintain that BM will be significantly disadvantaged by their inability to make effective submissions to the Convening Authority, As set out at paragraph 7,v) above, it is contended on behalf of BM that there is no reason why the documents cannot be provided to them at the same time as they are provided to the Convening Authority as their confidentiality would be protected by the documents which Lt. Col. Bradley and Mr Stafford Smith have signed in connection with the earlier proceedings against BM, It was contended on behalf of the Foreign Secretary that the United States Military Prosecutors considered that the orders made in the prior proceedings did not cover disclosure in the present context and there was no mechanism under which documents could be transmitted in confidence under the Military Commission's procedures to Lt. Col. Bradley and Mr Stafford Smith. It is perhaps surprising that there is this remaining dispute over what is apparently an issue of mechanics.
16. This is one respect - in our view the only respect - in which the assurances now provided by the Government of the United States fail to satisfy the requirements of BM's defence team in the United States in relation to the disclosure of the relevant information. In arriving at our final conclusions on public interest immunity and the discretion to order disclosure, it will be necessary to consider whether this is a legitimate requirement and, if so, to take account of this deficiency when performing the necessary balancing exercise in relation to public interest immunity and the exercise of the court's discretion to order disclosure.

The absence in the PII Certificate and Sensitive Schedule of a relevant consideration.

17. The practice in relation to the provision of Certificates claiming Public Interest Immunity is helpfully summarised in a paper published by the Treasury Solicitor in 1996:

"The Government has accepted advice that the approach of Lord Woolf in Wiley represents the law in all types of litigation, criminal and civil. In considering whether to make a PII claim for a document or piece of information, the current law can be taken to require three distinct steps.

First; A decision must be taken on whether there is a duty to disclose the document at all. Broadly speaking, the question in civil and criminal cases will be whether the document is relevant or potentially relevant to an issue in the case, If there is no duty to disclose the document, questions of PII do not arise.

Second; If there is a duty to disclose, a decision must be taken on whether the document attracts PII. Existing practice has been to determine this question by asking whether the document attracts PII because of its "contents" or because it falls into a "class" of documents which attracts PII. The Government regards this distinction as no longer helpful. It proposes to abandon it and adopt a new approach which applies the fundamental test of whether the maker of the certificate believes that disclosure would cause real damage.

Third: This step applies to some claims, including those made by Ministers. If the document attracts PII the decision-maker will consider (so far as he can judge it) the strength of the public interest in disclosing the document. This will require an assessment of the issues in the case, The decision-maker performs what is described in this report as the Wiley balancing exercise, usually after taking advice from counsel in the case or Treasury Counsel, if the balance appears to him to favour disclosure, he is entitled to disclose the documents. If the balance appears to go the otter way, or if the decision-maker is uncertain, he will put a certificate to the Court explaining clearly his reasons for asserting PII; and the court will then be invited to determine whether disclosure should be made," (at paragraph 2.3).

18. Although a Certificate is provided by a member of the United Kingdom Government, the question of whether a claim for public interest immunity is or is not justified is ultimately a question for the Court.
19. As is apparent from our summary at paragraph 5, the Foreign Secretary's PII Certificate addresses the balancing of the need of BM's lawyers to have that part of the relief they need after the State Department's first letter as against the damage which would be done to the interests of the national security of the United Kingdom, in particular to the harm that would be done to intelligence sharing with the United States.
20. It was submitted to us by the Special Advocates that the PII Certificate and the sensitive schedule failed to address, in the light of the allegations made by BM, the abhorrence and condemnation accorded to torture and cruel, inhuman or degrading treatment. This was a matter that had to be brought into account in the balancing exercise undertaken by the Foreign Secretary, It will be recalled that this was a matter to which we attached particular importance in our first open judgment: see paragraphs 142-4
21. It was accepted on behalf of the Foreign Secretary that it was material to have regard to this issue.
22. The Foreign Secretary nonetheless contended that the issues arising out of BM's allegation of torture and cruel, inhuman or degrading treatment were implicitly dealt with in his Certificate and in the Sensitive Schedule. Having carefully considered this matter, we do not consider that the issue arising out of the allegations made by BM is implicitly dealt with in these documents. It must follow that the Certificate and Schedule do not address this issue and are, therefore, insufficient in this regard as they do not show that the Foreign Secretary has taken into account a material matter.
23. It was contended by the Special Advocates that, in the result, we should pay no regard to the conclusion reached in the balancing exercise and should make our own judgement without regard to the Foreign Secretary's conclusions. However, we consider that in the particular circumstances of this case it would he wrong and unjust to do so.
24. As we set out at paragraphs 44 and 55 of our first open judgment, the Foreign Secretary and Mr Bethlehem QC had prior to the hearing in July 2008 gone to very considerable lengths to provide BM with assistance, Since the handing down of the judgments on 21 August 2008 , the Foreign Secretary and Mr Bethlehem QC, as is evident from what we have set out, have been engaged in lengthy discussions which have led to the important changes we have summarised. This has been time consuming and burdensome and has rendered very real assistance to the interests of justice in this ease.
25. In these circumstances and given the pressure of time and the speed at which matters have developed, we consider justice requires that we should allow the Foreign Secretary time to furnish a further certificate, either in open or closed form, to cover these issues. It would be open to the Foreign Secretary if he so wished, to deal with any further matters that have arisen since he issued his certificate, including the second letter from the State Department.

Future conduct of the proceedings

26. We have given the Foreign Secretary until Friday 5 September 2008 to serve a further certificate and the parties will be at liberty to make any further submissions in writing on that certificate prior to our reaching our conclusions on public interest immunity and the discretion to order disclosure.