As published in the Daily Mail:
A triumph over secret justice: Mail on Sunday’s critical victory for open courts as we win key High Court battle
• Landmark ruling reveals Government used judges to cover up torture blunder
• We reveal horrifying allegations over treatment of prisoners
• Mail on Sunday has led crusade against sinister new law
The Mail on Sunday has delivered a decisive blow against the creeping new culture of ‘secret justice’ after forcing the disclosure of a classified High Court judgment about torture in Afghanistan.
After a ten-month legal battle, we can at last reveal horrifying allegations over the treatment of prisoners captured by British forces in Afghanistan – evidence the Ministry of Defence wanted to keep secret.
We can now report that British officials, with the express approval of Labour Foreign Secretary David Miliband, were duped into handing over one particular detainee to the Afghan security service.
The newly disclosed judgment reveals how he told that he was beaten with steel rods, whipped with electric cables and deprived of sleep for days – and showed the scars to prove it.
Critics of secret justice said the new revelations indicate the MoD resorted to a secret hearing to cover their own embarrassment at handing the detainee over – and not to protect both his own and the UK’s national interest, as they claimed.
Crucially, the breakthrough is the first time parts of a formerly secret judgment have been published.
Even more significantly, it concerns the very case which inspired the Government to introduce this year’s hugely controversial Justice and Security Act – the law which formally enshrines secret hearings and secret judgments in the legal system, a radical departure from centuries of tradition.
Ever since it was first mooted, this newspaper has campaigned to expose the threat to democracy and openness that secret courts represent.
The High Court decision last week to allow publication of some of the secret Afghan prisoner judgment is the first victory in that campaign.
The battle began in April 2010. Maya Evans, a peace campaigner, asked the High Court to stop transfers of prisoners captured by British forces to the Afghan security service, the NDS, on the grounds they would be tortured.
The court, led by Lord Justice Richards, responded in part with a judgment that was public: It said that transfers to NDS jails in Kandahar and Lashkar Gar in Helmand could continue as long as British forces ‘monitored’ prisoners’ fates. But it added that no more prisoners should be sent to the NDS in Kabul.
Critically, the reasons for making this distinction were contained in a second secret judgment.
The reasons can only now be published, after the MoS successfully challenged the continuing secrecy.
We can reveal the secret ruling concerns a supposed Taliban leader, described only as Detainee 806.
When he was held by UK troops in January 2010, there was already a moratorium banning the transfer of prisoners to the NDS in Kabul, because its interrogation centre there – codenamed Department 17 – had gained a sinister reputation for torture and British forces found it impossible to gain access.
The now-declassified judgment states that Dr Amrullah Saleh, the NDS chief, persuaded UK officials to hand over Detainee 806, after giving his personal assurance that he would be cared for humanely and would be allowed weekly visits from the British.
According to a witness statement by a senior Foreign Office official which also was not disclosed in 2010, the ultimate decision to comply with Dr Saleh’s request was taken by Labour Foreign Secretary David Miliband and Armed Forces Minister Bill Rammell, on the grounds that the prisoner could more easily be prosecuted in Kabul – so breaching their own moratorium.
But as the judgment now reveals, Dr Saleh’s promises proved worthless. Once in Kabul, Detainee 806 ‘disappeared’ for a month. When he did finally meet two British Army personnel, he told them he had been beaten with steel rods about his legs and feet, punched in the head, torso, arms and testicles, and deprived of sleep for days.
On a subsequent visit, he said he had also been whipped with electric cables. Some of his injuries were photographed.
In 2010, the MoD asked for the evidence and judgment in the case to stay secret to ‘protect national security’ and preserve relations with the Afghan government. They also said disclosure might put prisoners at risk of reprisals.
But last night former shadow Home Secretary David Davis said: ‘Far from protecting national security, this was about hiding political embarrassment.’
He added: ‘The fact David Miliband broke our own moratorium and handed over a prisoner to be tortured is a clear matter of public concern, which using a secret court covered up. This is a very bad harbinger for the secret justice procedures which the new Act creates.’
This newspaper’s lawyers, led by Dinah Rose QC, argued that full disclosure was in the public interest. However, parts of the judgment – we do not even know how much – are still secret.
The High Court also refused our request to lay down guidelines to ensure future secret judgments are regularly reviewed, to allow publication as soon as possible.
An MoD spokeswoman said the ministry was happy that parts of the secret judgment had been disclosed, but added: ‘There are exceptional cases in which closed proceedings are necessary to safeguard national security.’
Neither Mr Miliband nor Mr Rammell responded to MoS requests for comment.