Shaker Aamer: Legal complications and torture claims

Until February this year, Mr Aamer’s legal team were emerged in a civil case looking at whether Foreign Office (FO) documents they believe could prove his innocence should be released to his lawyers and the public.

The Government finally consented to allowing Mr Aamer’s US security cleared lawyers access to the files in January, but, at a follow-up hearing in February, Mr Aamer’s legal team dropped the bombshell that Mr Aamer was a “key witness” in the Metropolitan Police’s criminal investigation into mistreatment of former Guantanamo detainee Binyam Mohamed - and that they had applied to the court to see the files in Mr Aamer’s case.

It was an important development as Mr Mohamed’s claims of torture and mistreatment resonate strongly with Mr Aamer’s torture claims.

The Met have two investigations into Mr Mohamed - one into his alleged mistreatment and another into the role a Secret Service agent (known as witness B) played in the case.

Mr Aamer, who alleges he was tortured in Afghanistan in January 2002 and Mr Mohamed, who allegedly was tortured in Pakistan in May the same year, both claim they were interviewed by a Secret Service agent called John.

If claims in Mr Mohamed’s case were proved, it could have massive implications for Mr Aamer’s case and would cause massive embarrassment for the Government, which maintained it has not been involved with torture.

February's revelation led Mr Aamer’s lawyers to ask the Foreign Office to again push for Mr Aamer’s immediate release to the UK, which has not happened, and, whether by design or accident, the criminal investigation also closed one of the only routes to the press and public obtaining further information in Mr Aamer’s case - disclosure through the courts.

The Met and the FO will not answer any questions in Mr Aamer’s case until the outcome of the criminal investigation - which has no timescale and could take years.

As the police investigation continues, Mr Aamer’s lawyers still maintain the files prove he is innocent and that the Government has not done enough to help free at British resident from unlawful imprisonment.

And while the legal machinery stutters, Mr Aamer remains under lock and key - still without ever being charged of any offence or any sign of trial or release.

Civil case

Senior High Court judges criticised the FO for wasting court time and money after it delayed Shaker Aamer’s legal team access to files which could prove his innocence.

At the sixth civil hearing in the High Court on February 19, 2010, the FO agreed to pay all costs in the civil case as a senior judge labelled the FO's change of legal position “baffling”.

In September 2009, Mr Aamer’s solicitors Birnberg Peirce, and its barrister Richard Hermer QC, won a High Court ruling allowing Mr Aamer’s US security cleared lawyers access to FO files that “may or may not” be relevant to Mr Aamer’s claims he was tortured.

The FO had previously released the files to the US, but only on the understanding they were not shown to Mr Aamer’s lawyers - but why?

Mr Hermer successfully argued Mr Aamer had a right to see files which could contain potentially “exculpatory” evidence.

Judges agreed, but the FO appealed against the decision, claiming access to the files would threaten national security and intelligence sharing between the US.

At the start of a hearing in January this year the FO said there had been a change “overnight” and that it was now happy to give Mr Aamer’s security cleared lawyers access to the files.

At the hearing on February 19 the FO agreed to pay all costs, but Mr Hermer said the Government still had not explained its “change of heart”. He said: “The Secretary of State says we are doing all we can to help Shaker Aamer, at the same time saying to the Americans do not give these documents, that are potentially exculpatory, to the solicitors.

“It was only after this court ordered disclosure, subject to the public interest immunity that the Government consented to the documents being disclosed.

“It was on October 16, 2009 . . . the defendant fist indicated that he wasn’t prepared to let the claimant see the document, even though he knew they were potentially exculpatory.”

James Eadie QC, representing the Government, said the FO always held a consistent view.

He said the UK was assisting the judicial process in the US, where a Guantanamo Bay Detainee task force was preparing a case, and it had sent over information, which took a considerable to time to find and analyse.

“The Secretary of State (SoS) acted sensibly and reasonably recognised the [court] decision . . .. and as a result fully accepted he changed his position,” he said. “It is to his credit that he took the decision of the court and changed his position.”

Lord Justice Sullivan, who at a previous hearing criticised the Government for not changing its position sooner, said: “The position is baffling . . . but given that this is relatively novel territory for the SoS and the court I don’t feel able to say it was unreasonable.”

He added: “The difficulty is he [the SoS] is the expert in national security. He knows what will and what will not damage national security. The other side of the coin is that it isn’t enough to claim that someone is threatening the interests of national security.”

The Government agreed to pay costs for all six of the court appearances, with Lord Justice Sullivan adding: “The whole process has been a complete waste of time and at huge expense.”

Criminal case

The civil hearing of February 19 hearing was explosive because Mr Aamer’s lawyers also revealed the Metropolitan Police viewed Shaker Aamer as a key witness criminal investigation into Binyam Mohamed’s torture claims.

Mr Mohamed, a former Guantanamo detainee who was released last year, alleges he was tortured by the US in Pakistan.

At the hearing Mr Hermer told the court the Metropolitan Police asked the court for files in Shaker Aamer’s case and had met with his solicitors Birnberg Pierce.

He revealed Met detectives applied to the High Court for release of files in Mr Aamer’s case to aid Mr Mohamed's’s investigation - In February, the Appeal Court ordered the disclosure of files showing MI5 knew that Mr Mohamed was being mistreated by the CIA.

Mr Hermer said: “Met Police attended the offices of the solicitors [Birnberg Pierce]. They are now investigating allegations into alleged complicity in his [Mr Aamer’s] mistreatment.”

He added: “It appears that these investigations are not new, their existence was not previously known to the claimant’s legal team in either the UK or the US.”

The Met refused to comment on the investigation but an FO spokesman said: “There are currently two police investigations into allegations of possible criminal wrongdoing by British government officials.

“In addition to the police investigation into allegations made by Binyam Mohamed, one further case has subsequently been referred by the Attorney General to the police. The case was referred to the Attorney General by the Secret Intelligence Service on its own initiative, unprompted by any accusation against the service or the individual concerned. These investigations are a matter for the police and the Government cannot comment further.”

After the hearing the FO flatly denied there was a criminal investigation into Mr Aamer’s case, but it appears logical that if the Met are investigating similar allegations concerning Mr Mohamed the Met would look, or is already looking, into claims by Mr Aamer as both cases bear similarities - questioning by secret service operators, possibly the same agent “John”.

Gareth Peirce, Mr Aamer’s lawyer in the UK, said the development compelled the Government to act to bring Mr Aamer home.

“Police are interested in potential evidence that Shaker can provide into both investigations,” she said, “they came to see us to ask for our assistance.

“The man is a victim and the man is a witness in UK investigations. It [the Government] has a duty to have him here. The one question is why isn’t he [Mr Aamer] back here, why is there so little being done, why is it that there’s no energy being put into bringing him back?”

While the FO said it was working behind the scenes to free Mr Aamer, there was little evidence of that, she said.

“They [the Government] say they are helping, but where is the help” she said. “This is possibly one of the most important criminal investigation there has been in this country, to investigate complicity and torture.

“This man has been tortured and he is a key witness,” she said, “but where is he, in the Caribbean, but not by choice.”

She added: “If he was in the same place where ill treatment was being carried out then it is relevant to him also. Even if we say it is not relevant to him personally, although that seems non-sensical, he is still a witness into criminality. A witness because you are a victim or a witness because you saw something - you are still a witness.”

Mr Aamer's US lawyer, Brent Mickum, maintains the secret files prove Mr Aamer is innocent and that he was tortured.

“Generally speaking, and without revealing any detail from the documents, my overall impression of the documents is that they are exculpatory in nature, period,” he said. “The documents are helpful to Shaker's defence, in so far as they describe the general allegations against Shaker, which we are in a position to refute almost unequivocally, and they show that he was tortured.

“What I have seen confirms my position that there is no legitimate evidence against him and confirms my continuing belief that he is being held by the Americans to cover up my government's wrongdoing.”

Torture allegations

Mr Aamer was captured in Afghanistan in 2001 and alleges he was visited by both MI5 and MI6 in Kandahar in Afghanistan and that he was interviewed in Bagram, Afghanistan by an MI5 agent “John”.

In a legal statement submitted by his solicitors, Mr Aamer said John was aged about 40 and said there was “nothing he could do as it was all in the US’s hands”.

John’s interrogation allegedly took place after Aamer had been subjected to weeks of torture including sleep deprivation over nine days, cold water torture which led to frostbite, “hog tying” and beatings along with threats that he would tortured in Egypt, Jordan, or Israel.

Mr Aamer said: “Once after a few days of sleep deprivation they took me to the interrogation room and the intelligence team starting coming one after another and the room was full, up to 10 or more.

“One of them, a British MI5 agent, was standing and they started talking to me in different languages - English, French, Arabic - and shouting.

“I felt someone grab my head and start beating my head into the back wall so hard that my head was bouncing. They were shouting that they would kill me or I would die.“

Ethiopian-born Binyam Mohamed - a UK resident - was released from Guantanamo in February 2009. He alleges he was tortured while held by US in Pakistan in May 2002 and he was visited by British agent named John.

Mr Aamer was in Bagram in January 2002, before he was transferred to Guantanamo on February 13 that year.

A 2005 Intelligence Security Committee report, The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, confirmed a Secret Intelligence Service (SIS) operator interviewed a detainee in Afghanistan in 2002.

The report noted that on January 10, 2002, he wrote “whilst he was satisfied that there was nothing during the interview which could have been a breach of the Geneva Conventions, he reported back to London his: “… observations on the circumstances of the handling of [the] detainee by the US military before the beginning of the interview.”

Instructions sent back to him the next day said: “With regard to the status of the prisoners, under the various Geneva Conventions and protocols, all prisoners, however they are described, are entitled to the same levels of protection.

"You have commented on their treatment. It appears from your description that they may not be being treated in accordance with the appropriate standards. Given that they are not within our custody or control, the law does not require you to intervene to prevent this. That said, [the Government’s] stated commitment to human rights makes it important that the Americans understand that we cannot be party to such ill treatment nor can we be seen to condone it. In no case should they be coerced during or in conjunction with an SIS interview of them. If circumstances allow, you should consider drawing this to the attention of a suitably senior US official locally.

“It is important that you do not engage in any activity yourself that involves inhumane or degrading treatment of prisoners. As a representative of a UK public authority, you are obliged to act in accordance with the Human Rights Act 2000 which prohibits torture, or inhumane or degrading treatment.

"Also as a Crown Servant, you are bound by Section 31 of the Criminal Justice Act 1948, which makes acts carried out overseas in the course of your official duties subject to UK criminal law. In other words, your actions incur criminal liability in the same way as if you were carrying out those acts in the UK.”