Distinguished Visiting Professor of Law Scott Horton had an article British Court Reopens U.S. Torture Case as Obama is Lobbied to Change Course published in Harper's Magazine on February 12, 2009.

In two cases in the last year the British Government has represented to courts that continuation of proceedings that included allegations of criminal wrongdoing by British and foreign officials would undermine national security if they were to proceed. In both cases British officials claimed that the foreign government would stop cooperation with counterterrorism efforts if the case were to proceed. And in both cases, as soon as the legal proceedings were terminated, the government immediately proceeded to claim that the suggestion that the foreign government had made a threat of any kind was simply a “misunderstanding.” From the perspective of many observers it was an astonishing example of bait-and-switch involving the national legal system.

Today the High Court in London agreed to reopen the most recent case, involving British Guantánamo detainee Binyam Mohamed, making clear that it was highly dissatisfied with Foreign Secretary David Miliband. Mohamed’s lawyers also issued an appeal directly to President Obama asking him to intervene directly in the case. The Guardian reports:

US defence officials are preventing Barack Obama from seeing evidence that a former British resident held in Guantánamo Bay has been tortured, the prisoner’s lawyer said last night, as campaigners and the Foreign Office prepared for the man’s release in as little as a week. Clive Stafford Smith, the director of the legal charity Reprieve, which represents Ethiopian-born Binyam Mohamed, sent Obama evidence of what he called “truly mediaeval” abuse but substantial parts were blanked out so the president could not read it.

In the letter to the president [PDF] , Stafford Smith urges him to order the disclosure of the evidence. Stafford Smith tells Obama he should be aware of the “bizarre reality” of the situation. “You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command.”

During the transition period, Obama staffers were regularly denied access to information relating to the Bush Administration’s torture programs. Stafford Smith notes that a number of Bush Administration officials involved in administering these programs, although political appointees, subsequently “burrowed” into career positions where they continue to have on-going responsibility and appear to be obstructing disclosure of what has happened. Two leading Congressional Democrats yesterday pointedly criticized the Obama Administration’s conduct with respect to the Binyam Mohamed case. House Human Rights Subcommittee chair Bill Delahunt told The Times (London) that:

There seems to be no valid national security reason that would prevent full disclosure. I know the President has concerns about this kind of affair and expressed a desire to be transparent. I believe he will act in good faith.

On the Senate side, Russ Feingold also took the administration to task over its handling of the Binyam Mohamed matters. Greg Sargent reports:

“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party… “I have asked for a classified briefing so that I can understand the reasons for this decision,” Feingold’s statement said.

A group of senior House Democrats led by New Yorker Jerrold Nadler announced that he is reintroducing legislation setting limitations on the Justice Department’s ability to claim national security concerns as a basis for blocking litigation. Under Nadler’s measure, which previously was endorsed by Vice President Joe Biden and earned supporting comments from Obama, but was opposed by the Bush White House, judges would be required to form an independent view as to the bona fides of Justice Department claims of national security, particularly when the claim was interposed to stop a lawsuit. The measure is being backed by the New York City Bar Association and is expected to gain the backing of other bar groups. Nadler took the occasion to attack the Obama Administration’s stance in the Binyam Mohamed case:

The administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege.