House of Commons - Foreign Affairs Committee

Human Rights Annual Report 2008 - Foreign Affairs Committee Contents

Letter to the Chairman from the Chairman, All Party Parliamentary Group on Extraordinary Rendition

[*** Asterisks denote that part of the written evidence that has not been reported because it is covered by the House of Commons' sub judice resolution.]

I am writing about extraordinary rendition and related issues in my capacity as Chairman of the All Party Parliamentary Group on Extraordinary Rendition.

I welcome the Foreign Affairs Committee's Human Rights Inquiry. Your Committee's work has already been extremely valuable in holding the Government to account on this issue in the past.

THE ALL PARTY PARLIAMENTARY GROUP ON EXTRAORDINARY RENDITION

1. The APPG has two main objectives: to get to the truth on rendition and British involvement in it, and to ensure that the framework in place to prevent British involvement in rendition is sufficiently rigorous. We need to get to the truth to bring closure to this issue and to enable us to restore trust and regain the moral high ground in the struggle against dangerous extremism. The framework in place to prevent British involvement in extraordinary rendition has failed. A more robust framework of law and practice is required to give the public confidence that the UK cannot be involved in extraordinary rendition in the future. The APPG will shortly be publishing proposals to this end.

2. Since the All Party Parliamentary Group on Extraordinary Rendition was created in December 2005, I have made a number of specific allegations: that the UK was involved in the rendition of British residents, that Diego Garcia was used for renditions, and that our Armed Forces may have been dragged into rendition. Each of these was categorically denied. All of them have turned out to be true. I am pleased that you have decided specifically to address these issues. The Government is now asking us to rely on another set of assurances, and it is the credibility of those that your investigation can most fruitfully address.

3. In preparing this submission I have taken the headings used by your Committee in the announcement of its inquiry: the case of ***, allegations of UK complicity in torture, extraordinary rendition (including the possible role of Diego Garcia), and the transfer of prisoners in Iraq and Afghanistan.

Is the United States withholding information about the two rendition flights through Diego Garcia from the UK Government?

Will the Foreign Secretary now ask the US Administration for comprehensive information on all rendition "circuit flights" through UK airspace?

Are the arrangements currently in place to ensure the proper treatment of people transferred into the custody of US, Afghan, or Iraqi authorities, adequate?

Has there ever been a formal or informal policy that UK Forces would capture individuals but not officially detain or arrest them? If so, what is the purpose of this policy?

***

What investigations have been carried out to determine the veracity of allegations of British involvement in the mistreatment of British nationals detained abroad, including in Ethiopia and Pakistan?

What are the Foreign Secretary's objections to a judge-led inquiry into rendition, given that Lord Carlile, the Government's independent reviewer of terrorism legislation, the Opposition parties, and most experts in the field believe that it is necessary?

EXTRAORDINARY RENDITION (INCLUDING THE POSSIBLE ROLE OF DIEGO GARCIA)

4. It is now over a year since the discovery of the two rendition flights through Diego Garcia. The action taken by the UK Government following this disclosure has been inadequate. It has failed properly to investigate these flights and further allegations of Diego Garcia's involvement in renditions. Such allegations include that detainees may have been held and interrogated on Diego Garcia, and that ships holding detainees were located near to Diego Garcia and may have been serviced from the island.[5]

5. It has also failed to follow your Committee's recommendations on rendition "circuit flights", that is, flights through the UK on the way to or from carrying out a rendition. On 1 October 2008 I wrote to your Committee about Diego Garcia, enclosing a note on the legal framework applicable to its use in the US rendition programme. I wrote again about Diego Garcia on 17 December 2008 and 29 January 2009. These letters are attached as Annex I.[6]

6. Last year the Foreign Secretary sent a list of flights to the US for specific assurances that they were not involved in renditions. This list did not include flights through UK airspace that did not land at UK airports and the Foreign Secretary failed to ask the US to confirm whether any of the flights on the list were "rendition circuit" flights. He appeared not to know whether the US had cross-checked the list of flights with their own records before providing renewed assurances on this issue.[7] This gives the impression of going through the motions rather than a genuine attempt to get to the truth on rendition flights through UK territory. It would be straightforward for the Government to seek assurances that none of the flights on the list it submitted to the US were on the way to, or from, rendition operations at the time of their transit through UK airspace.

7. Criminal offences may have been committed in the course of the two known rendition operations through Diego Garcia. Parliamentary Answers to me have revealed that information on these flights has not been passed to the police by the Government, although possible criminal wrongdoing has apparently been considered: "We have considered the possibility that criminal offences may have been committed in relation to the two rendition flights through Diego Garcia. We have very limited specific information about these flights and, despite enquiry, have not been able to establish further details that would be essential for purposes of further investigation". [8]The implication is that the US is withholding information about these flights from the UK Government. I have attached the relevant Parliamentary Questions as Annex II.[9]

8. It is important to determine whether agreements, including the "Exchanges of Notes" in 1966 and 1976, were breached by the US in the course of these two flights. The note I sent to your Committee on 1 October 2008 is relevant in this regard. It seems clear that the US believes the flights in themselves were not in breach of any agreements with the UK. If the agreements in place were not breached, then they appear inadequate for the purpose of preventing British involvement in extraordinary renditions. If they were breached, then this would be a serious matter. Questions that arise from this information and from my earlier letters to your Committee include:

Who were the detainees rendered through Diego Garcia; where were they held and interrogated; how were they interrogated; where were they transferred to and from?

What "enquiries" has the UK Government made to establish further details in relation to the Diego Garcia flights? Why, despite these enquiries, does the Government have

Is the United States withholding information about the two rendition flights through Diego Garcia from the UK Government?

Were the rendition flights through Diego Garcia a breach of the Exchanges of Notes, or other Agreements, with the US? If so, what are the implications of such a breach? If not, are the Agreements in place sufficiently rigorous to prevent rendition flights from happening in the future?

Whether the Government will now take the simple step of asking the US about rendition "circuit flights" through the UK.

TRANSFER OF PRISONERS IN IRAQ AND AFGHANISTAN

9. As you know, I have long been concerned that the arrangements in place to ensure the proper treatment of detainees captured by UK Forces, and subsequently handed over to US, Iraqi, or Afghan forces, may be inadequate. I first asked a Parliamentary Question on this issue in 2004 and wrote to your Committee about this on 27 October 2008. I have also raised these concerns with the Defence Committee and the Defence Secretary on numerous occasions. The responses that I received from the Government did not reassure me. On 31 January 2008 the Government described the understanding in place with US, Iraqi and Afghan forces on this issue in the following terms: "Whenever we have passed an individual from UK jurisdiction into the jurisdiction of the Iraqi, Afghan or US authorities, we have had in place an understanding that they would not transfer that individual to a third country without first seeking our consent or at least informing us of their intention".[10] Merely being informed of the intention to render a detainee from one jurisdiction to another would, in my view, be insufficient.

10. In February 2008 Ben Griffin confirmed my concerns. A former member of UK Special Forces, he alleged that people captured by UK Forces in Iraq and handed over to US forces had subsequently been tortured, or rendered to detention facilities including Guantanamo Bay, Bagram Theatre Internment Facility and Abu Ghraib Prison.[11] He alleged that a UK policy was in place which attempted to avoid legal obligations towards those the UK detained: "As UK soldiers within this Task Force a policy that we would detain individuals but not arrest them was continually enforced. Since it was commonly assumed by my colleagues that anyone we detained would subsequently be tortured this policy of detention and not arrest was regarded as a clumsy legal tool used to distance British soldiers from the whole process."

11. On 26 February 2009 the Defence Secretary was forced to confirm in an Oral Statement that two individuals captured by UK Forces and transferred to US detention had been subsequently rendered to Afghanistan. Your Committee's intervention on this issue was doubtless a key factor in this information coming to light. However, this Statement raises more questions than it answers. It casts further doubt on the adequacy of the detainee transfer arrangements in place. It also highlights the need for a full investigation into the allegations made by Ben Griffin. I hope your Committee will consider recommending such an investigation in its Report.

12. The Defence Secretary's Statement specifically excluded operations that go to the heart of the Ben Griffin allegations: "In areas outside Multi-national division South East, UK forces have undertaken operations to capture individuals who were subsequently detained by the US. These individuals do not feature in the data I set out above, and I do not intend to provide further details on these detentions today." Australian documents recently made public under its Freedom of Information Act cast further light on Australia's acknowledged policy of capturing individuals in Iraq without officially detaining them, and handing them over to US forces. By ensuring that US servicemen were always present when Australian Forces captured individuals, Australia did not "detain" a single individual in Iraq, and so legal obligations that attach to the "Detaining Power" under the UK/US/Australian Memorandum of Understanding were never invoked.

13. The Statement sets out that: "In retrospect, it is clear to me that the transfer to Afghanistan of these two individuals should have been questioned at the time." It makes clear that officials were aware of the renditions in 2004. The Statement appears to rely on a detention review, a limited amount of which was disclosed to the APPG following a Freedom of Information Act (FOIA) request last year. Here is an extract from the review: "The picture is a positive one. The UK has met its obligations by a combination of assurances, operational judgement, and record keeping. The Department will always be open to baseless speculation that we have been complicit in rendition or ill treatment. To end all speculation would require us to prove a negative. We can say, however, that we have no evidence of unlawful rendition and we have looked". This conclusion appears inaccurate in the light of the Secretary of State's Statement. The accuracy of the review as a whole, on which the Secretary of State appears to rely, is questionable.

14. Following his Statement the Defence Secretary wrote to me on this issue. He confirmed that every substantive letter I received from the Ministry of Defence last year on this issue was inaccurate. His letter to me illustrates the difficulty for those of us who want to have confidence in the latest assurances from the UK Government on rendition. Your Committee may wish to consider:

Whether the procedures currently in place are sufficient to ensure the proper treatment of transferred detainees and to prevent British involvement in such renditions in the future.

Whether a policy of capture without arrest or detention exists or existed, and if so, what its purpose is or was.

Why were the two renditions not questioned at the time? At precisely what point were officials aware of the renditions in 2004?

Whether the Defence Secretary's reliance on US assurances on the treatment of the two rendered detainees is appropriate, given your Committee's previous conclusion that US assurances on torture cannot be relied upon.

Whether the UK has taken any measures to establish the treatment of the two rendered detainees, independent of US assurances on this issue.

What did the Secretary of State mean when he stated that

Why was a

15. I have made a number of Freedom of Information requests on this issue, for information relating to the understandings between UK, Iraqi, Afghanistan, and US authorities on detainee handovers; a list of all individuals who have been detained by UK Forces in Iraq or Afghanistan; all information relating to the policy described by Ben Griffin; and all information contained in the "review of detention practices in Iraq and Afghanistan", referred to above. The MOD withheld the vast majority of this information and I have complained about this refusal to disclose to the Information Commissioner. Your Committee may wish to request similar information from the Defence Secretary, or ask him to come before your Committee to provide evidence.

THE CASE OF BINYAM MOHAMED

16. ***

17. ***

18. ***

19. ***

***

ALLEGATIONS OF UK COMPLICITY IN TORTURE

20. Allegations have been made that British officials have been involved in the mistreatment of British nationals detained in Pakistan and elsewhere. I have asked a number of Parliamentary Questions on this issue. I remain concerned that the Foreign Office is unable to establish the precise number of British nationals detained abroad on suspicion of terrorist offences, particularly in relation to dual-nationals.[12] I am also concerned that British non-consular officials have in at least one case had access to a British detainee where consular officials have not. Credible allegations of British involvement in mistreatment require investigation. I set out some of these concerns in more detail in my letter to you of 17 December 2008.

21. A BBC report in October 2008 claimed that British officials had questioned people who had been unlawfully rendered to Ethiopia. The report alleged that those rendered did not have access to a lawyer and that some were mistreated while in Ethiopian detention.[13] Reports of a large number of renditions to Ethiopia in 2007 are widespread.[14] The Government has confirmed to me that British officials met "a number" of individuals in Ethiopia in 2007, but that they were "not aware that their detention was unlawful" and that "none of these particular detainees complained of any physical mistreatment". It is unclear what steps were taken to determine whether or not the detention of these individuals was lawful or whether or not the detainees had been mistreated. The Government failed to tell me whether the detainees had access to a lawyer or had been rendered from Kenya or Somalia. ***

22. ***. Some of these cases were considered in the ISC's 2007 Report into Rendition but it is now clear that the ISC was not provided with all the relevant information in the course of its enquiries. Your Committee may wish to ask the Foreign Secretary:

What investigations have been carried out to determine the veracity of allegations of British involvement in the mistreatment of British nationals detained abroad on suspicion of terrorist offences?

What guidance is in place to govern the involvement of UK officials in the interview of British nationals or residents detained abroad? What guidance is in place to govern the involvement of UK officials in the interview of detainees held in countries suspected of mistreating their detainees?

What steps were taken by UK officials to discover whether or not the detainees they met in Ethiopia were maltreated, whether they had been rendered from Kenya or Somalia, and whether or not they access to a lawyer, at the time?

What investigations have been carried out to ensure that information provided in relation to UK involvement in the rendition and detention of other British nationals and residents, is accurate?

***

FURTHER POINTS FOR YOUR INQUIRY

23. The Foreign Office's Annual Report on Human Rights 2008. The Foreign Office Human Rights Annual Report 2008 briefly addresses Guantanamo Bay, rendition, Diego Garcia and Binyam Mohamed.[15] The Foreign Office lists Diego Garcia as a "Highlight from our counter-terrorism and counter-proliferation work in 2008." As you know, the rendition flights through Diego Garcia came to light following a records check by US authorities, not as a result of efforts by the Foreign Office. On the contrary, the Foreign Office had persistently refused to investigate allegations made by me and others that Diego Garcia had been used for renditions. Follow-up action on this issue, including the sending of a list of flights to the US, and Government action on rendition more generally, has been inadequate. These inadequacies are set out in more detail in the section on Diego Garcia. I am also concerned that the Report continues to rely on US assurances on rendition, which have proven to be inaccurate in the past. Freedom of Information Act responses to me have revealed that inaccurate assurances were provided on at least eight separate occasions by the US in relation to Diego Garcia alone.

What led the Foreign Office to cite the rendition flights through Diego Garcia as a "Highlight" of its work, details of which emerged not because of any efforts by them, but despite persistent refusal to investigate allegations that they had taken place?

24. A Judge-led Inquiry. I note that the Prime Minister has asked the ISC to consider new developments and relevant information since the publication of its reports on Detention and Rendition. However, I now believe that given the breadth of confirmed UK involvement in rendition, the UK Government's reticence in responding to credible allegations of further involvement and to the recommendations of your Committee, and the ISC's limited mandate, a judge-led inquiry is needed to get to the truth on rendition. Lord Carlile, the Government's independent reviewer of terrorism legislation, the Opposition parties and most experts in the field have come to the conclusion that a judicial inquiry is necessary. I very much hope that your Committee will make this recommendation in its Report.

What are the Foreign Secretary's objections to a judge-led inquiry into rendition, given that Lord Carlile, the Government's independent reviewer of terrorism legislation, the Opposition parties and most experts in the field believe that it is necessary?

25. Lack of Moral Leadership by the UK. The Bush Administration led the UK into facilitating extraordinary rendition.[16] The Obama Administration is now leading the UK Government in its withdrawal.[17] At least three benefits can flow from leading rather than following the change of policy on this:

i. Greater scope for influencing the direction of US policy in this area. Despite the reforms of the Obama Administration aspects of US policy on this issue remain to be decided.

ii. It is morally right to do so.

iii. By signalling repugnance of past policy the UK can demonstrate a determination to distance itself from past mistakes and promote the rebuilding of trust with communities, both at home and abroad, which might have tolerated or assisted terrorism. Leadership makes us more secure.

Although condemning torture, both the Blair and the Brown Governments have persistently stopped short of condemning extraordinary rendition.

Does the Foreign Secretary think that the time has come to condemn the past practice of extraordinary rendition by the US? Does he think sufficient safeguards are in place to give the public confidence that Britain will not find itself again complicit in the practice?

I would be happy to provide further information on the issues set out in this submission, or to give oral evidence to your Committee if it would be helpful. I am placing a copy of this submission in the public domain.

Andrew Tyrie MP

3 May 2009