As bmaz reported last night, the Obama Administration has refused to accept Vaughn Walker’s ruling in al-Haramain–in fairly spectacular fashion (and yes, bmaz, Mary, MadDog and others did tell me this was going to happen).

Meanwhile, across the pond, the folks from whom we got our legal system are refusing the very concept that the government could avoid its legal liability by claiming its crimes were all a secret. The British Court of Appeals refused the British government’s attempt to respond to a suit from Binyam Mohamed and other former Gitmo detainees by claiming only the government and the judge could see the evidence–effectively the stance the Obama Administration has now doubled down on.

British residents held at Guantánamo Bay could be offered millions of pounds in compensation for wrongful imprisonment and abuse after the court of appeal today dismissed an attempt by MI5 and MI6 to suppress evidence of alleged complicity in torture.

The judges ruled that the unprecedented legal move by Britain’s security and intelligence agencies – which the attorney general and senior Whitehall officials backed – to suppress evidence in a civil trial undermined the principles of common law and open justice.


In the appeal court ruling, Lord Neuberger, master of the rolls, Lord Justice Maurice Kay and Lord Justice Sullivan said that accepting the argument of the security and intelligence agencies would amount to “undermining one of [the common law’s] most fundamental principles”. One of those principles was that “trials should be conducted in public, and the judgments should be given in public”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. But government officials have told the Guardian that the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements as that would be preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

In other words, if the government refuses to share evidence of its own involvement in the torture of British residents and citizens, then they are going to have to settle with those men, rather than just dismissing the suit altogether by saying the plaintiffs can’t see the most crucial evidence in question. Had the government accepted Walker’s judgment in al-Haramain, they would have paid millions, but would have managed to keep evidence of their precious illegal wiretap program (a program both Obama and Holder have said was illegal) secret. (The Times has more, including some excellent quotes from the plaintiffs’ lawyer.)

How quaint the old country looks from this distance!



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.