ANY MEANS AT OUR DISPOSAL: The case of Binyam Mohamed

by Alan Shapiro

To the Teacher

The case of Binyam Mohamed, a legal resident of Great Britain who was recently released after being held for seven years as a suspected terrorist, is emblematic of the multiple issues raised by "the war on terror."

The first student reading below provides a very brief overview of Mohamed's ordeal and puts his detention in political context. The second reading describes in some detail Mohamed's treatment. The third considers U.S. efforts, which ultimately failed, to prevent the UK from allowing information about Mohamed's treatment to become public and a pending lawsuit involving Mohamed.

Discussion questions, a proposed fish bowl discussion, and suggested subjects for further inquiry and for writing and citizenship follow.

 


Student Reading 1:

Binyam Mohamed's "darkest nightmare"

"I hope you will understand that after everything I have been through I am neither physically nor mentally capable of facing the media," Binyam Mohamed said after he stepped off a plane as a free man in London on February 23, 2009, after nearly seven years of prisons, interrogations, and torture.

He told this privately to Reprieve, an organization that had worked for his release and issued his remarks later. "I have been through an experience that I never thought to encounter in my darkest nightmares. Before this ordeal, torture was an abstract word." (Raymond Bonner, "Freed Detainee Arrives in Britain," New York Times, 2/23/09)

That ordeal began on April 10, 2002 when Mohamed was arrested at the Karachi, Pakistan, airport as a suspected terrorist when he attempted to fly to London. Pakistani authorities imprisoned Mohamed but soon turned him over to the US for a $5,000 bounty. During the following years the CIA shipped him to Morocco for 18 months, then to Bagram, Afghanistan, until 2004. Then he was delivered to Guantánamo, where he remained until February 2009 without charge or trial. Why?

In London on June 15, 2008, members of Reprieve, a legal action charity that represents over 30 Guantánamo prisoners, used a visit by President Bush to to highlight the plight of Binyam Mohamed, a London resident who was then still being held at Guantanamo Bay. Photo courtesy of: www.reprieve.org.uk.

The Bush administration before & after 9/11

In the months before September 11, 2001, top officials of the Bush administration, including the president himself, did not seem to have been seriously concerned about an attack on the US, according to the president's anti-terrorist advisor, Richard Clarke. He said on the CBS program "60 Minutes" that "White House officials were tepid in their response" when he urged them months before 9/11 to meet to discuss what he saw as a "severe threat from al Qaeda." Clarke charged that the president "ignored terrorism for months, when maybe we could have done something to stop 9/11." (3/21/04)

On August 6, 2001, President Bush received a secret intelligence report whose heading read, "Bin Laden Determined to Strike in US," which detailed why US intelligence had reached this conclusion. The president did not act on this information. The public did not learn about this report until April 10, 2004, after pressure from the 9/11 commission.

But the 9/11 attacks themselves galvanized officials. They now saw that terrorist threats to mainland United States were very real. On the NBC program "Meet the Press" on September 16, 2001, Vice President Dick Cheney talked about the US response to the attacks.

We have to work on "the dark side," he said. "A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we're going to be successful…and so it's going to be vital for us to use any means at our disposal, basically, to achieve our objective."

Tension, fear, and a desperate desire for any information that could prevent another attack drove Bush administration officials. Using "any means at our disposal" and working on "the dark side" to prevent more attacks became the order of the day.

Bush administration anti-terror measures

One measure the Bush administration adopted in an effort to prevent attacks was the "extraordinary rendition" program. This involves seizing terrorist suspects abroad; denying them access to due process, lawyers, or the International Red Cross; and sending them for interrogation and imprisonment to foreign countries known to torture. This is what happened to Mohamed Binyam.

Bush officials swiftly developed other measures that included

  • approving "enhanced interrogation techniques" such as waterboarding and other acts that most people would consider to be torture
  • describing detainees as "unlawful combatants" instead of "prisoners of war" to avoid Geneva Convention rules about how how prisoners must be treated
  • obtaining Department of Justice authorization for interrogation methods banned by the UN Convention Against Torture (1984), the War Crimes Act (1996) and other international agreements and domestic legislation.
  • establishing prisons at Guantánamo Bay, Cuba, and Bagram, Afghanistan, where cruel and inhumane prisoner treatment frequently occurred without scrutiny
  • extending the government's "state secrets" privilege (citing a threat to "national security") to prevent judges from hearing cases that might have revealed administration errors or violations of the law.

President Bush himself insisted repeatedly that "We don't torture" (3/16/05). He also said that the illegal behavior at Abu Ghraib prison in Iraq involved actions "by a few American troops who disregarded our country and disregarded our values." (5/24/04)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why do you suppose that President Bush did not act on intelligence he received about Osama bin Laden before 9/11?

3. Explain each of the actions taken by the Bush administration after 9/11 that are listed above. If you are uncertain about any of these actions, how might you find out more?
 


Student Reading 2:

Binyam Mohamed's ordeal

Binyam Mohamed was born on July 24, 1978, in Ethiopia. His father, an executive with Ethiopian Airlines, was an opponent of the Ethiopian government. In 1992, he and his three children, including Binyam (then 14) fled the country. They found refuge in a Washington, D.C., suburb. But when Binyam was 16, his father took him to London to live by himself. The reason, Binyam said later, was the he "wanted to get out" of the US Apparently Binyam had been the victim of racist bullying in the US

The British government provided Binyam with social services and granted him asylum as a legal resident. In his late teens and early 20s he studied electronic engineering, eventually at the City of Westminster College, and worked as a janitor. During those years he also developed a serious interest in his mother's Muslim religion—as well as a drug habit.

A pre-9/11 trip to Afghanistan

In June 2001, Mohamed went to Afghanistan. He traveled there, he said later, to kick his drug habit, to learn about the Muslim government of the Taliban, and to find a way to help the mostly Muslim people of Chechnya (in Russia), who were rebelling against Russian control. "To me," Mohamed said, "the Chechens were freedom fighters and the Russians were the oppressors….I wanted to go there to do what I could—not for fighting, but as an aid and rescue worker."

Told that he needed training, he went to a camp for 45 days, where "Much of the time…was spent sitting around doing nothing. Mohamed said later that he "learnt nothing that could be construed as terrorist training."

The 9/11 attacks made Mohamed decide to leave Afghanistan. "All I wanted to do was to get back to London…." He was at the Karachi airport on his way back when he was arrested.

Mohamed's treatment in Morocco, Afghanistan, and Guantánamo

Mohamed never learned why he was accused of being a terrorist—nor has the public.

On July 22, 2002, the CIA "rendered" Mohamed from Karachi to a U.S.-run prison in Rabat, Morocco. According to the American Civil Liberties Union, "Mohamed's captors repeatedly hit his head against the wall until he bled. He was thrown into a tiny cell…and chained to the floor. Despite the extreme cold, he was given only shorts and thin shirt to wear and a single blanket as thin as a sheet….

"He was kept in almost complete darkness for 23 hours a day and made to stay awake for days at a time by loud music…the sounds of 'ghost laughter,' thunder aircraft taking off and the screams of women and children."

Mohamed said his interrogators cut his genitals repeatedly, poured a hot stinging liquid on his wounds, and played loud music day and night while he sat in a room with open sewage. (www.aclu.org)

During almost daily interrogations he was shown pictures of Afghanis and Pakistanis and questioned about them. He invented stories to avoid further torture. "In May 2004, Mohamad was allowed outside for five minutes. It was the first time he had seen the sun in two years."

"They had fed me enough through their questions for me to make up what they wanted to hear," Mohamed told an interviewer years later. "I confessed to it all. There was the plot to build a dirty nuclear bomb, and another to blow up apartments in New York….I said Khalid Sheikh Mohammed [the self-proclaimed architect of 9/11] had given me a false passport…and that I had met Osama bin Laden 30 times. None of it was true." (Andy Worthington, author and journalist, www.andyworthington.co.uk, 8/3/09)

In May 2004 Mohamed was shipped to Kabul, Afghanistan, and taken to Bagram Air Base. According to the ACLU, he was forced to write "a 20-page statement that detailed his relationship with Jose Padilla, how they went to Afghanistan together, and how they planned to go to the United States to detonate a dirty bomb." (www.aclu.org, 5/30/07)

Charges dropped

After he was transferred to Guantánamo, Mohamed was charged with plotting terrorist acts. But the military dropped his case because 1) the US Supreme Court ruled in Hamdan v. Rumsfeld that the military commission system in which he was to be tried was unconstitutional and 2) if he were to be tried in a civilian court, his confessions would be inadmissible since they were produced by torture.

US officials then proposed that Mohamed accept a plea bargain: he would be released after three more years in prison, if: 1) Mohamed agreed to be silent after his release about his treatment; 2) Mohamed's lawyers halted their efforts to obtain documents and photographs that might support his claims of torture; and 3) Mohamed agreed not to sue the US government or its officials. (Raymond Bonner, www.nytimes.com, 3/23/09)

Mohamed refused. With all charges dropped, Britain pressured the US to release him, since he had gained asylum as a legal resident there years earlier. Four and one-half years after his imprisonment at Guantánamo, Mohamed was released to return to Britain.

But the case of Binyam Mohamed was not over.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is "extraordinary rendition"? Why do you think were President Bush expanded its use after 9/11? Why might others oppose it?

3. When did Binyam Mohamed go to Afghanistan? What reasons did he give for going?

4. Why was Mohamed arrested? How did the CIA treat him? Why? To what crimes did he confess? Why?

5. Why do you think Mohamed rejected a plea bargain?

6. Why did the US drop the case against Binyam and release him to Britain?

7. Who are Hamdan and Rumsfeld? What was the Supreme Court ruling in Hamdan v. Rumsfeld? If you don't know how might you find out?

 


Student Reading 3:

Mohamed's charges supported in first of two cases

After his release, Binyam Mohamed was determined to obtain justice for being falsely accused as a terrorist, tortured, and imprisoned for nearly seven years. He and his lawyers continued their lengthy efforts.

US tries to effort to prevent release of information

The British government had conceded even while Mohamed was at Guantánamo that it had "exculpatory" evidence from the US itself about the kind of treatment that had produced Mohamed's confessions. But Britain refused to release it this evidence to Mohamed even after its own High Court ruled in his favor. The reason: Pressure from the US government.

The Bush administration maintained that the information it had provided to the UK was top-secret. It warned that if Britain made it public, the US would end the intelligence-sharing agreement between the two governments. President Barack Obama continued this Bush policy. Hillary Rodham Clinton, Obama's secretary of state, repeated the threat—despite Obama's campaign promise to adhere to the rule of law in the handling of detainees.

British officials said intelligence-sharing with the US was vital to its counter-terrorist operations and its security, and succeeded in putting off release of the High Court's ruling for a year.

Information released

The legal battle in Britain continued until February 10, 2010, when the British Court of Appeals ruled again in favor of Mohamed. The result was publication of a seven-paragraph statement about the secret intelligence material on Mohamed. The key paragraph declared:

"The treatment reported, if it had been administered on behalf of the United Kingdom, would clearly have been in breach of the undertakings given by the United Kingdom in 1972 (among the UK's numerous anti-torture commitments). Although it is not necessary for us to categorize the treatment reported, it could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities."

US secret intelligence sent to Britain also stated that Mohamed's treatment included "continuous sleep deprivation" and "threats," among them fueling "his fears of being removed from United States custody and 'disappearing.'"

According to David Miliband, Britain's foreign secretary, releasing this information did not violate Britain's agreement with the US, since a US court ruling in December 2009 had accepted Mohamed's claims of mistreatment, which were very similar to those described by the British court.

Miliband said that Mohamed had been right to allege that he had been mistreated. He added that the English Court of Appeals' judgment "is not evidence that the system is broken; rather it is evidence that the system is working and the full force of the law is available when citizens believe they have just cause.'" (John Burns, "Losing Legal Fight, Britain Reveals Detainee's Treatment by the US," New York Times, 2/11/10)

A second Mohamed case

The American Civil Liberties Union filed a suit in 2007 against Jeppeson DataPlan, Inc., a subsidiary of Boeing aerospace company. The suit charged that this subsidiary "knowingly participated in providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear" Binyam Mohamed and four others "to detention and interrogation."

Just as in the UK case, the Bush administration wanted to prevent the release of information about the treatment of Mohamed or anyone else. They argued that making the information public would pose a threat to US security (the "state secrets" privilege) and asked the judge to dismiss the case without considering the evidence.

A San Francisco appeals court rejected the government's claim. But Obama adopted the Bush view and appealed that decision. The court's decision is pending.

Until Bush became president, the government had claimed the state secrets privilege only to object to the release specific evidence—not to get entire cases thrown out of court.

The ACLU issued the following statement: "Although we learned nothing new from the publication of the seven paragraphs in the UK, what their publication confirms is that in the case against Jeppesen, the US government's invocation of the state secrets privilege is not about protecting our national security; rather it's all about our government side-stepping any legal accountability for torture and abuse. (www.aclu.org, 2/10/10)

Former CIA prisoners who claim they were tortured in prisons overseas cannot sue
"because such a lawsuit might expose secret government information." This 6-5 decision by a U.S. appeals court reversed an earlier court decision upholding the prisoners' right to a trial. The New York Times called it "a major victory for the Obama administration's efforts to advance a sweeping view of executive secrecy powers."

Before his election to the presidency in 2008 Obama criticized Bush administration policies he has since adopted. Among them are use of the state secrets privilege, preventing prisoners in Afghanistan from challenging the legality of their imprisonment, and the extraordinary rendition program.

The court dismissed the ACLU lawsuit against Jeppesen Dataplan, Inc., which the plaintiffs accused of arranging flights for the CIA. Judge Raymond Fisher said the decision presented "a painful conflict between human rights and national security," but that the majority conclusion was the government's need to protect "legitimate national security concerns."

The "human rights" were those of five U.S. prisoners, among them Binyam Mohamed, who were kidnapped, tortured, and imprisoned for years. The federal appeals court, upholding the "state secrets" principle, denied their right to a trial "even one that would seek to rely only on public information." Any information about the government's "legitimate national security concerns" is not available to the public.

In a surprising show of sympathy for the plaintiffs, the court ordered the government to pay the legal costs of Mohamed and the four others even though they did not request that.

Judge Michael Hawkins, in an opinion representing the views of the five dissenting justices, declared: "Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive plaintiffs of a fair assessment of their claims by a neutral arbiter." (Charles Savage, "Court Dismisses A Case Asserting Torture By CIA," 9/9/10)

Ben Wizner, staff attorney with the ACLU, said, "To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers."

The plaintiffs are expected to appeal their case to the Supreme Court. (Charles Savage, "Court Dismisses A Case Asserting Torture By CIA.," 9/9/10)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why did US officials demand that the UK not release intelligence information it had provided? How did the US threaten the UK? How might carrying out this threat be harmful to Britain?

3. Why did the British court rule in favor of Binyam? Why won't British officials appeal the case further?

4. Why did the ACLU file suit against Jeppesen on behalf of Mohamed and several others? What was the Bush administration's reaction to the suit? What was the Obama administration's position on the suit? Why?

5. Was the UK's appeal court decision a demonstration that "the system is working"? Whose system? Why?

6. What is the state secrets privilege? What does the ACLU think about it and why? Do you agree? Why or why not?

 


Fish bowl discussion

This type of discussion is an excellent method for involving students in examining a controversial issue—in this case, the treatment of Binyam Mohamed.

Have five to seven students with diverse points of view make a circle in the middle of the room. Everyone else makes a circle of chairs around this fish bowl group. Only people in the inner circle may speak.

Begin the examination by asking a question and inviting a "go-around" of fish bowl students speaking to the question without interruption. Designate a specific amount of time for further comments after each student who wishes to has spoken.

After 15 minutes or so, invite students from the larger circle to participate by tapping a fish bowl student on the shoulder and moving into that student's seat. Continue with additional questions.

Some possible questions:

1. The United States has signed the Geneva Conventions, which state that "prisoners of war must at all times be humanely treated" and cannot be forced to provide information. The US pledged to uphold similar provisions when it approved the UN Convention Against Torture, the US Army Field Manual's Law of Land Warfare, and the US War Crimes Act. But since 9/11, US officials have repeatedly violated these commitments and tortured prisoners (though they have denied that the treatment they condoned constituted "torture"). Was the U.S.'s treatment of prisoners justified? Why or why not?

2. Should top officials of the Bush administration, including the former president, be prosecuted for violating US laws and international treaties? Why or why not?

3. When President Obama was asked about such prosecutions, he said that "nothing will be gained by spending our time and energy laying blame for the past." Do you agree? Why or why not?

4. Should the Bush and Obama administration claims of the state secrets privilege be extended to get cases thrown out of court? Why or why not?

5. On his first full day in office, President Obama issued a memorandum stating, "The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears." Has he violated his own order in the Mohamed case? If so, how? If not, why not?

6. Should the US cut off its intelligence-sharing agreement with Britain? Why or why not?

7. How should the San Francisco appeals court rule in the Jeppesen case? Why?

8. The US State Department's introduction to the "Principles of Democracy" says : "The rule of law means that no individual, president or private citizen stands above the law…." (http://usinfo.org/enus/government/overview/law.html) Has President Obama been acting in accordance with the "rule of law" in the two cases involving Binyam Mohamed? Why or why not?

9. Is it possible for a citizen to make a fair judgment of the government's use of the state secrets principle in the Mohamed, or any other, case? If yes, how? If not, why not?

For inquiry

  • Possible subjects for independent and small group investigations include:
  • The terrorist threat and the rule of law
  • Hamdan v. Rumsfeld
  • The case of Maher Arar
  • Any of the laws or treaties the US has signed banning cruel and inhuman treatment of prisoners
  • The CIA practice of "extraordinary rendition"
  • US Justice Department memos by John Yoo, Jay Bybee and others during the Bush administration authorizing the use of executive power and the treatment of prisoners

Preceding such investigations, students should be required to perform a preliminary survey of the subject they've chosen. Have students prepare and discuss with you two or three specific questions that will guide their inquiry. See "Thinking Is Questioning" in the high school section for suggestions about helping students learn to ask good questions.

For citizenship and writing

Following their work on "Torture and National Security," have students write letters to the president and/or students' legislators on a specific issue of interest to students. Letters should ask officials for their response to specific questions.
 


This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org