So are we at risk from the US, or not?

David Miliband appears to be wriggling. The Foreign Secretary issued a Public Interest Immunity Certificate on September 5 explaining why “seven very short paragraphs amounting to about 25 lines” of a High Court judgment should not be made public.

These paragraphs summarise reports by the US government to MI5 and MI6 on the circumstances under which Binyam Mohamed, a British resident suspected by the US authorities of terrorism, was held incommunicado and unlawfully in Pakistan and elsewhere between 2002 and 2004.

Lord Justice Thomas and Mr Justice Lloyd Jones wanted to include the paragraphs in an earlier ruling because the summary was highly material to Mohamed’s claim that he had been tortured. After the Foreign Secretary objected, the judges agreed to redact, or remove, the seven paragraphs pending further argument.

At paragraph 62 of their judgment issued yesterday, they said “the Foreign Secretary’s certificates, particularly the certificate of September 5, 2008, make clear that the United States Government’s position is that, if the redacted paragraphs are made public, then the United States Government will re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided.

“It was and remains (so far as we are aware) the judgment of the Foreign Secretary that the United States Government might carry that threat out and this would seriously prejudice the national security of the United Kingdom.”

The judges had seen evidence to show that Mr Miliband had assessed the risk to Britain’s intelligence relationship with the US in good faith and on the basis of evidence from high-ranking US officials.

There was no basis on which Mr Miliband’s judgment of the danger to national security could be questioned in these circumstances, the judges said.

“In the judgment of the Foreign Secretary there is a real risk that, if we restored the redacted paragraphs, the United States Government, by its review of the shared intelligence arrangements, could inflict on the citizens of the United Kingdom a very considerable increase in the dangers they face at a time when a serious terrorist threat still pertains.”

For that reason, the judges decided it would not be “in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day-to-day life”.

Passing the buck to its historic resting place, the judges concluded: “If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.”

This strikes me as a superb ruling by the two Welsh judges. They came down resoundingly on the side of free speech while explaining that their hands are tied by their duty to protect Britain's national security.

But what was Mr Miliband's reaction?

“There has been no threat from the United States to ‘break off’ intelligence co-operation,” he told Channel 4 News last night.

“Intelligence co-operation depends on confidentiality. We share our secrets with other countries and they share their secrets with us. The founding principle for us and for them is that we can trust the confidentiality of that relationship.

“In this case, the United States made it clear, in documents that have been published, that there would inevitably be serious and lasting harm if that fundamental principle was breached.”

The judges did not say that the US had threatened to “break off” intelligence co-operation. They said it would “re-evaluate its intelligence sharing relationship with the United Kingdom with the real risk that it would reduce the intelligence provided”.

That was certainly how they understood Mr Miliband’s certificate. Is that his position now, or not? The Foreign Secretary should tell us if his evidence has been misunderstood by the court. In that event, I am sure the judges would be more than happy to re-open the case and publish the disputed paragraphs.

● The case is thought to be the first in which the court has considered arguments from a barrister and her non-lawyer brother. Dinah Rose QC appeared for Binyam Mohamed while David Rose, a contributing editor at Vanity Fair, made written representations as a member of the media.

Posted at February 5, 2009 01:00 AM