State Secrets, UK Style

A three-judge panel of the British Court of Appeal today ordered the release of a seven-paragraph summary of U.S. intelligence information about the treatment of Binyam Mohamed, the detainee who was subject to extraordinary rendition, torture, and detention at Guantanamo under U.S. control with UK assistance.

The British Foreign Office fought for over a year to keep the paragraphs secret, asserting national security concerns--a kind of state secrets privilege--and worries that release would impact the government's relationship with U.S. intelligence agencies.

The British Court of Appeal ruled against the Foreign Office, however, in a lengthy judgment (link above) citing, among other considerations, government openness, accountability, and journalists' right to obtain information as bases for rejecting the Foreign Office's claim that release would damage national security.  The Court also recognized that Mohamed's assertions were already released in a federal court opinion in the D.C. District in December 2009 in another case.

The Court of Appeal approach is a far cry from the sweeping approach to the state secrets privilege by the Fourth Circuit in El-Masri and by the Bush and Obama administrations.  (Our state secrets posts analyzing the scope of the privilege in recent cases and in administration arguments are collected here.)  The Guardian summed it up:

Three of the country's most senior judges today shattered the age-old convention that the courts cannot question claims by the government relating to national security, whatever is done in its name, in an unprecedented ruling that is likely to cause deep anxiety among the security and intelligence agencies.

The Foreign Office elected not to appeal the ruling, because it says that the court, even while ruling against it, validated the "control principle."  That principle holds that only those who create or give intelligence--and not those who receive it--can be ordered to release it.  The Foreign Office web-site says that the court ordered the release of the summary because its substance had already been released by the D.C. District.

This overstates the role that the control principle and the D.C. District played in the decision.  In fact, the court ruling goes to great lengths to discuss values related to government openness and accountability.  The fact that the D.C. District validated some of Mohamed's claims played only one part in the court's final judgment.

But for the Fourth Circuit and for both the Bush and Obama administrations, none of these concerns plays a role.  Government openness and accountability are easily trumped by national security concerns, and prior release of the underlying information--even by the administration itself--is no bar to an assertion of the state secrets claim.  Thus the Fourth Circuit and both the Bush and Obama administrations have claimed a sweeping state secrets privilege that allows little role for the courts in judging the validity of the administration's national security claim.

SDS