Pressure from the US and suggestions that it could no longer share secret intelligence with Britain – the heart of the special relationship – led the government to move to block any prospect of the courts revealing any information about CIA activities again.
David Cameron told the Commons that the government will next year "publish a green paper which will set out our initial proposals for how intelligence is treated in the full range of judicial proceedings, including addressing the concerns of our allies". The government is seeking legislation that would in future prevent judges releasing information passed to MI5 by the CIA, as they did in the Binyam Mohamed case.
Cameron's unprecedented announcement was triggered by two separate but related court cases.
The first was the decision by the high court to reveal a summary of CIA evidence about the treatment of Mohamed, a British resident who says he was tortured in Pakistan, Morocco, Afghanistan, and Guantánamo Bay, and that MI5 knew.
That case, which went on for 18 months with Lord Justice Thomas and Mr Justice Lloyd Jones urging disclosure against strong government resistance, came to a head earlier this year when the judges revealed that CIA-based intelligence showed that MI5 knew that Mohamed had been subjected to treatment "at the very least cruel, inhuman, and degrading".
David Miliband, then foreign secretary, warned that the US might refuse to share intelligence with Britain in future if English courts revealed CIA information. Dennis Blair, US director of national intelligence, condemned the court decision, saying it was "not helpful, and we deeply regret it". In the second case, six UK citizens and residents, including Mohamed, who were detained at Guantánamo Bay, with, they say, MI5 and MI6 connivance, are seeking compensation through the courts for abuse and wrongful imprisonment.
A high court judge had given MI5 and MI6 until this Friday to provide a list of 250,000 documents relevant to the case. Hence Cameron's call for mediation, on the grounds of cost as well as to protect MI5 and MI6 information from disclosure in the courts. The former detainees – Mohamed, Bisher al-Rawi, Jamil el-Banna, Richard Belmar, Omar Deghayes and Martin Mubanga – deny any involvement in terrorism and allege that MI5 and MI6 aided and abetted each man's unlawful imprisonment and extraordinary rendition. They made it clear that though they wanted some kind of compensation, they also wished to see an inquiry into what MI5 and MI6 knew about their treatment – in particular, what the CIA told them.
In future, if the green paper leads to legislation imposing a blanket ban on the disclosure of British or foreign intelligence in court, the sort of allegations raised and evidence that came to light in the Mohamed case will never again emerge.
The legal charity Reprieve, which represented Mohamed, said : "There is going to be a green paper as to how intelligence, especially foreign intelligence, will be treated in court. There is already ample opportunity – much increased recently – for evidence to be heard in secret. There is no need to expand this dangerous practice."