By JR on Monday, April 09, 2012
The debate over instituting secret trials for "security" reasons in Britain has thrown up under parliamentary privilege an example of the abuses such trials make possible
Despite the years of cruel reality, Margaret Bentham still seemed incredulous as she told her story, a story she once thought she could never share. But with quiet dignity she summed up the ordeal she and her businessman husband Stuart, a former British Army officer, have endured at the hands of the CIA.
‘We were robbed of a business worth millions,’ she said. ‘We were plunged into financial ruin. But the worst thing was, not only were we deprived of justice, we couldn’t tell a soul.’ In an exclusive interview, Mrs Bentham told The Mail on Sunday how the CIA decided a civil court case about the Afghan mobile phone company he had helped to establish was too ‘sensitive’ to air in public.
It used draconian legal powers to shut down the case – so destroying not only the Benthams’ livelihood, but any prospect of redress after Mr Bentham alleged the company had been stolen from him.
The background to the alleged fraud against Mr Bentham, 63, and his business partner Lord Michael Cecil, 52, a brother of the Marquess of Salisbury, goes back to 1998, when they went into business with Ehsanollah Bayat.
Mr Davis described him in the Commons as ‘a Kabul-born American citizen on friendly terms with the highest echelons of the Taliban government and particularly its leader, Mullah Omar’.
Mr Bayat had the connections to acquire the licence to build Afghanistan’s first mobile phone, internet and international call system – Mr Bentham and Lord Michael the business expertise.
But, as Mr Davis said, Mr Bayat had a secret: he was an informant for the FBI, the main US domestic counter- terrorism force. The link made an opening for Operation Foxden, a scheme the FBI planned to run jointly with the National Security Agency (NSA), the US electronic eavesdropping organisation.
The NSA offered $30 million and technical assistance, said Mr Davis. The plan was to build extra circuits into all the equipment installed, enabling the US to ‘record or listen live to every single landline and mobile phone call in Afghanistan’ and ‘monitor the telephone gateways channelling international calls in and out of the country – gateways already being used by Bin Laden, Mullah Omar and their associates, thanks to the satellite phones given by Mr Bayat to Taliban ministers as gifts’.
By the beginning of 2000, after all the main partners had made several visits to Afghanistan, the project was at an advanced stage, and could have been fully functional within months – 18 months or more before 9/11.
Recently, Mr Bayat has claimed he never had connections with US security agencies or the pre-9/11 Taliban government. But Mrs Bentham said that in the Nineties he seemed to make no secret of such links.
‘I remember one time when we flew in to Newark, New Jersey, and Bayat met us off the plane,’ she said. ‘He was with two FBI agents. We went to their office. Then they took me to the station so I could go shopping in New York while they had their meeting.’
But just as the project seemed to be on the brink of coming to fruition, it was wrecked by what Mr Davis termed a ‘turf war’ between the FBI and NSA on one side, and the CIA, which wanted to control it.
The consequence, as the agencies bickered in Washington, was that nothing happened for 20 months. By the time these bureaucratic obstacles had been cleared, it was too late.
A meeting to get the scheme going again, attended by Mr Bentham and Lord Michael, took place in New York in a hotel overlooking the World Trade Centre on September 8, 2001 – three days before the attacks.
Mr Davis commented: ‘Of course, we cannot say for certain that if US intelligence agencies had managed to tap the Afghan phone network sooner, we would have intercepted evidence in time to stop the 9/11 attacks, but it seems quite likely.’
After 9/11, the Taliban were toppled by US-led forces. Very soon after that, Lord Michael, Mr Bentham and their colleagues, working with Mr Bayat’s company Telephone Systems International (TSI), installed the very network that had been planned two years earlier. The Britons ordered and paid for most of the equipment and ran the project out of London.
Once operational in April 2002, the firm became a licence to print money and is now said to be worth about £700 million.
The Mail on Sunday has copies of official US documents, signed by Mr Bayat in May 2002, stating that Mr Bentham and Lord Michael each were entitled to 15 per cent of the shares: their holdings, in other words, should now each be worth more than £100 million.
Instead, said Mrs Bentham, she and her husband are in straitened circumstances, and live in a rented house, dependent for holidays on hospitable friends.
‘We were living a very comfortable life. And then it changed completely. We had no idea what we were dealing with, and the terrifying thing is what happened to us could happen to anyone.’
In the autumn of 2002, having offered to buy out Mr Bentham and Lord Michael for a ‘derisory’ sum that did not even cover the cost of the equipment they bought, Mr Bayat sued them for ‘deceit and conspiracy’, and, simultaneously, simply denied they had any legal entitlement to shares in TSI.
They had copious documentation, and, their lawyers believed, a cast-iron case. But as Mr Davis told MPs, this was no ordinary commercial squabble: ‘The US intelligence agencies feared the consequences if the truth about their infighting emerged and they were determined to stop that truth from emerging.’
First, they offered Bayat $1 million for his legal fight – part of a more general plan to exclude British citizens and British agencies from the ongoing phone intelligence operation. Then, when the Britons’ lawyers refused to back down, ‘CIA officers threatened them, warning the whole case would be shut down if they continued’.
Finally, in November 2004, came the use of the State Secrets Privilege. The effect was not only to close down the case immediately, but to expunge all trace from court records.
Lord Michael and Mr Bentham were subject to a gagging order so severe that when they tried to reopen the case in London, they were forbidden on pain of contempt of court from discussing any aspect of the intelligence background with their own lawyers.
Although there were hearings in London, which the Britons lost for technical legal reasons, the British courts had little idea of what had actually happened. ‘The State Secrets Privilege meant that the US agencies were restricting what could be said in court in England,’ Mrs Bentham said.
‘I couldn’t speak to friends, and I felt pretty sure our phone calls and emails were being monitored. Meanwhile, legal fees meant we were facing a colossal drain on our cash. Imagine: you have to sell your home, but you can’t tell anyone why.
‘So we just stopped going out socially, because people would ask, “How are things?” and we couldn’t even begin to answer. It’s only now, after the parliamentary debate, that at last people know.’
The worst moment, she recalled, was when the State Secrets Privilege was deployed. ‘They showed the judge some kind of statement that we couldn’t see, and he shut down the case next day for reasons we weren’t allowed to read. And that’s the kind of thing that’s going to happen here if the Green Paper becomes law.’
Later, she said, the Benthams’ American lawyers asked a US judge whether their British lawyers could see the secret judgment and gagging order in strict confidentiality, so that at least they could advise them whether they should try to pursue the case in London. The judge refused.
They also tried to get the State Secrets Privilege reversed in a federal US appeals court. They lost again – and the appeal court’s 17-page decision is also strictly secret.
Mrs Bentham said: ‘The lesson is that the US legal system is perfectly willing to condone the theft of our assets. What gets me is that one of the main reasons the British Government has justified the Green Paper is to protect American secrets.’
At the end of the Commons debate, Foreign Office Minister Jeremy Browne gave the Benthams a glimmer of hope. He said the Prime Minister had been aware of their plight for months and would in due course respond to their representations.
Meanwhile, Mr Davis said the case highlighted a fundamental inequality between Britain and the US: that American agencies could apparently dictate what British citizens could talk about in British courts – even the very use of the State Secrets Privilege which had enabled such secrecy in the first place.
‘It’s just not good enough to say that restricting the Green Paper proposals to national security cases will make them less obnoxious,’ Mr Davis said yesterday. ‘Once you let security trump the rule of law, injustice such as this is inevitable.’