Obama Stands Behind 'State Secrets' Defense

After previous judgements last year effectively exposed the UK holding some secret evidence useful to Mohamed's defence – mainly information shared with Britain by U.S. intelligence – the American government did let Mohamed's defence team see those documents, provided they remained secret.

Last week, however, Lord Justice Thomas and Mr Justice Lloyd Jones of the British High Court, took matters further – arguing that while it was not for them to order public disclosure of U.S. secret material, particularly in the face of clear and dire "threats" by the U.S. government to reduce intelligence-sharing with Britain if they did, there was a pressing case for the information to be publicly revealed.

Harsh Comments Towards the U.S.

In striking comments, they suggested surprise that a democracy like the U.S., "governed by the rule of law," would want to suppress evidence "relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be."

In the House of Commons, the British foreign secretary, David Miliband, denied there were ever such explicit threats. But he did confirm that releasing the documents despite strong U.S. protests would result in "real and significant damage to the national security and international relations of this country."

One way or another, it was a court judgement that put President Obama's White House perfectly on the spot. Despite all of Obama's condemnations of the Bush administration and its promise to break with the past on issues of rendition and torture: what is it going to do with the all trail of evidence?

The 42 secret documents obtained by the High Court – summarised in just seven paragraphs censored from the public judgement – were said to refer only to one part of Mohamed's treatment, his alleged torture in Pakistan. But establishing the principal of exposing such things, some U.S. officials suggest, could open the floodgates to exposing the secrets of rendition and secret detention.

Even just this limited material, said the judges, gave rise to an "arguable case of torture or cruel, inhuman or degrading treatment" in law. As "admissions" by U.S. Government officials about how Mohamed was treated, they could possibly used as evidence in a criminal court.

Last Thursday, Leon Panetta, Obama's new nominee for CIA director, while condemning practices of rendition and torture, told senators at his nomination hearing that he opposed any move to prosecute those obeying orders to use harsh methods.

But if everything that happened inside the world of rendition and secret detention after 9/11 is made public, some form of criminal investigation into the conduct of those officers may, for legal reasons, be unavoidable, regardless of whether Obama wants it or not.

Stephen Grey, an ABC News consultant, is the author of "Ghost Plane: The True Story of the CIA's Rendition and Torture Program" (St. Martin's Press). He is an award-winning investigative reporter who has contributed to the New York Times, BBC, PBS and ABC News among others.

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