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Detainee Documents Point To Abuse

The Guantanamo quandary for the Obama Administration goes beyond what to do with the remaining detainees, all of whose cases are now under review per an executive order signed by the President in January.

There could also be long-term and troubling legal implications for the United States and its allies, reports CBS News correspondent Sheila MacVicar.

Of immediate concern is the case of British resident Binyam Mohamed.

His U.S. military-appointed defense lawyer, Air force Lt. Col. Yvonne Bradley has been in London, pressing the British government to push the Americans for Mohamed's release from Guantanamo, where's he's been held since 2004.

Mohamed was a legal resident of Britain when he was arrested in Pakistan in 2002. He has told his lawyers he was flown to secret prisons in Morocco and Afghanistan before finally arriving in Guantanamo.

He was charged there with terror offenses, including planning a dirty bomb attack. All charges were dropped last October following the resignation of the chief prosecutor in his case, who left claiming exculpatory evidence was not being made available to detainees' defense lawyers. Four other cases were also dropped after the resignation. A threat to immediately bring new charges has never materialized.

Mohamed claims he confessed to being a terrorist only after he was brutally abused and tortured, and that both American and British intelligence officers were at least complicit in the torture.

Lt. Col. Bradley says there is evidence to support his claims of torture and that it is in 42 classified documents held by the British government.

Mohamed's lawyers and British media have sued in the British High Court to make those documents public.

The British - and American - governments are fighting that on national security grounds. As the British Foreign Secretary David Miliband told Parliament that Britian's intelligence relationship with the United States is vital to the security of the United Kingdom.

"It is essential that the ability of the U.S. to communicate such material in confidence to the UK is unaffected," Miliband said.

Miliband pointed to a letter received from the U.S. State Department, authored by The Legal Advisor, John Bellinger III, on Aug. 21, 2008, to bolster his argument. The letter said, "…the public disclosure of these documents or of the information contained therein is likely to result in serious damage to U.S. national security and could harm existing intelligence information arrangements between our two governments". "

That last sentence was interpreted as a threat by the British media and by the British High Court, which ruled that Mohamed's lawyers, with security clearances, could have access to the documents, but that they must not be made public. The court harshly criticized the American government for what it characterized as U.S. interference in British affairs.

But a former Bush administration official with specific knowledge of the case, who requested anonymity, has told CBS News the letter was written at the request of the British government and that both the U.S. and British government wanted to ensure the documents remained secret. The British Foreign Office declined to comment on the record.

The British court also said the documents contained "evidence of serious wrongdoing by the United States which had been facilitated, in part, by the UK government."

Lt. Col. Bradley has a security clearance, and has seen the documents. She cannot say what's in them. But she did say, "this is not a matter of national security, this is a matter of national embarrassment. The U.S. and other countries may not want to be embarrassed by what happened to Mr. Mohamed and the full story and information and account coming out of what happened to Mr. Mohammed."

The British government's public position on torture has always been that it does not practice or condone it. The existence of the letter, and the court's statement, raise the question of what the British knew about torture in Guantanamo and other secret prisons, including some run by the CIA, when they knew it, and what, if any, concerns were raised with the American government.

British lawyer Philippe Sands, who has written about torture, concurs.

"The issue is one of complicity. Were foreign governments and their leaders complicit in the abuses that took place? The Obama administration finds itself stuck between a rock and a hard place," Sands said. "It wants to move forward but increasingly material is emerging from outside the United States that indicates that foreign governments may have had a role'.

And, perhaps, a case to answer. The British attorney general has already been asked to start a criminal investigation into the actions of members of the British Secret Services in the case of Binyam Mohamed.