A Guantánamo Bay prisoner can sue the UK government in England and Wales over allegations that British intelligence services asked the CIA to put questions to him while he was being tortured in “black sites”, the UK’s highest court has ruled.
The supreme court said MI5 and MI6 were subject to the law of England and Wales and not – as the government had attempted to argue – the six different countries where Abu Zubaydah was held.
Abu Zubaydah, a Palestinian national whose full name is Zayn al-Abidin Muhammad Husayn, said that between 2002 and 2006 he was unlawfully rendered by US agents to Thailand, Lithuania, Poland, Guantánamo Bay in Cuba, Afghanistan, Morocco and finally to Guantánamo Bay again, where he has been held without trial ever since.
Last year, the court of appeal unanimously overturned the decision of the high court that the relevant law was that of the countries where Abu Zubaydah was held rather than the law of England and Wales.
In a judgment handed down on Wednesday, by a majority of four to one, the supreme court upheld the court of appeal’s decision.
Lord Lloyd-Jones and Lord Stephens wrote: “On the assumed facts, the claimant has been unlawfully rendered against his will to a series of foreign countries in succession in which he has been detained, interrogated and tortured. He did not even know in which country he was held at any given time.
“It was part of a deliberate plan to disorientate him that he should be denied knowledge of where he was. In these circumstances, his involuntary presence in any of the six countries cannot constitute a meaningful connection with that country. Furthermore, he could have had no reasonable expectation that the law of wherever he was should apply to his situation.”
Other factors cited for the majority judgment were:
There was no suggestion that the UK intelligence services were aware or ever took steps to find out where Abu Zubaydah was.
He was rendered to and held in each of the six countries by the CIA without any reference – or access – to the laws of those countries.
The number of black sites in which the claimant was held “diminishes the significance of the law of any one of them”.
Abu Zubaydah’s captors and those who administered the ill-treatment were not agents of any of the six countries (save possibly in relation to Guantánamo Bay).
The alleged torts were committed by UK intelligence services in England and Wales.
MI5 and MI6 were “acting in their official capacity in the purported exercise of powers conferred under the law of England and Wales”.
Abu Zubaydah claims that the UK intelligence services committed the civil wrongs of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence in a case that threatens to put UK complicity with the CIA’s kidnap and torture programme during the “war on terror” back into the spotlight.
He alleges that the UK intelligence services sent numerous questions to the CIA to be used in interrogations, without seeking any assurances that he would not be tortured or mistreated or taking steps to discourage or prevent such treatment.
He claims that at the black sites he was waterboarded on 83 occasions and also subjected to extreme sleep deprivation, confinement inside boxes, beatings, death threats, starvation, denial of medical care and no access to sanitation.
Before the case could proceed against the UK Foreign Office, Home Office and attorney general, being vicariously liable for the conduct of MI5 and MI6, the high court ordered that the law governing the torts should be identified as a preliminary issue.
No findings of act have been made.
