Examination of Witnesses (Question Numbers
1-19)
KATE ALLEN,
CLIVE STAFFORD
SMITH OBE AND
BENJAMIN WARD
10 JUNE 2009
Q1 Chairman: I should like to
welcome all three of you to this meeting of the Foreign Affairs
Committee. I apologise for having to reschedule the session at
short notice from a couple of weeks ago. As you know, we were
concerned about the effects that the House of Commons' sub judice
rule might have on our proceedings. For that reason, we deferred
the sitting and decided to split the evidence session in two,
the first part of which will deal with matters that may be sub
judice. It will be held in private. The private session will deal
with matters raised with us by Reprieve and some of the matters
raised by Amnesty International[1]
and Human Rights Watch. The second part of the session will be
held in public later this afternoon in the normal way. It will
deal with the remainder of the issues raised with us by Amnesty
International and Human Rights Watch in their submissions. With
regard to the private session, I must draw to your attention the
fact that evidence given in private remains confidential until—and
unless—the Committee takes a decision to make it public.
To reveal anything that is said in a private session would therefore
be a contempt of the House. A transcript will be sent to you after
the session for your corrections, and that document itself will
be supplied in confidence. Notwithstanding that, as we made clear
in our press notice, the Committee wishes to bring as much as
possible of what is said into the public domain as quickly as
possible, subject only to the need not to breach the House's sub
judice rule. What is said in private is not subject to that rule
but, in preparing a transcript for subsequent publication, we
will need to act in accord with the House's intention in agreeing
the rule, which is to guard against the possibility of prejudice
to future court proceedings arising from the reporting of anything
that has been said in Committee. I should emphasise that we have
no other interest in keeping any material confidential. There
is no benefit from our point of view in being in possession of
information that we are not able to make public and which we are
not able to refer to in our report. We will therefore look closely
at the transcript of this afternoon's private session, with a
view to publishing as much of it as possible. If it is necessary
to issue a redacted version, we will keep you informed. At the
end of this private session, which will be at about 3.20 pm, we
will ask you to withdraw. We will then deliberate in private for
a short period. At 3.30 pm, we will commence the public session
with Amnesty and Human Rights Watch to deal with other issues.
Finally, as we have a great deal of ground to cover, I ask all
my colleagues to be brief in their questions, but also hope that
you can be brief in your answers because we really have a lot
to do today to get through everything. Thank you very much for
coming along. For the record, will each of you state who you are
and say what your position is in the relevant organisations?
Kate Allen: My name is Kate Allen
and I am the Director of Amnesty International in the UK.
Chairman: You have appeared before our
Committee many times.
Benjamin Ward: My name is Benjamin
Ward. I am the Associate Director for the Europe and Central Asian
Division of Human Rights Watch.
Clive Stafford Smith: I am Clive
Stafford Smith, the Director of Reprieve. Let me reiterate that
I am desperately sorry for being late. I hate to be late for things,
but it is a bit of a nightmare out there.
Q2 Chairman: It took me two and
a half hours to get in from Ilford this morning, so don't worry.
What is your assessment of the changes brought about by the election
of President Obama and the new US approach, particularly with
regard to extraordinary rendition?
Kate Allen: There are many things
to welcome from the approach taken by the new Administration in
the US. On issues of rendition we have seen an explicit revocation
of the Executive Order of 20 July 2007 authorising the continuation
of the CIA's programme of secret detention and interrogation,
but we have not seen the end of all rendition. We still see the
ability to use rendition in transitory detention, so although
there have been some progressive moves, we have not seen the complete
end of rendition and its use in temporary and short-term measures.
We at Amnesty, and I am sure my colleagues who are here, will
continue to campaign on those aspects.
Benjamin Ward: I would echo that.
It is perhaps important to be aware that the phenomenon of the
irregular transfer of suspects began in the United States under
the Administration of President Clinton. Those cases involved
the transfer of people to face prosecution, so called renditions
to justice. That is an area of concern that relates to the new
Administration as well. More broadly, under the approach of the
new Administration, there has clearly been a strong condemnation
of torture and cruel treatment. Obviously, there are a number
of other areas, such as the military commissions and proposals
for administrative detention, and other factors that are a cause
of concern to us.
Clive Stafford Smith: First, on
President Obama—I voted for the guy. I think that he is
an exceptional person, but on the other hand, there is an awful
lot that he is not doing. He is one person who has a lot of poisoned
chalices to deal with. Let us be clear: rendition is still going
on and it will continue to go on. The business of closing CIA
prisons is chimerical because the vast majority were not CIA prisons
and they still exist. For example, the two people rendered by
the British to Afghanistan are still being held in secret detention,
and we don't know what their names are. President Obama is no
more likely to make that public than President Bush was. An awful
lot of work remains to be done, and a lot of the prisons that
we have dealt with—that in Djibouti, for example, and I
am sure that we will talk a little about Diego Garcia—still
exist. They are not CIA prisons but are very active. We delude
ourselves if we think that Obama's first few pronouncements have
solved the problem.
Kate Allen: I think that the UK
Government have been consistently slow to articulate their position
on some of the abuses of human rights by the American Administration.
It would be very good if pressure was brought to bear for them
to articulate their position on transitory detention, which we
have mentioned, on the issues that Clive has raised, and on some
of the disquiet that we still have about the content of US Army
field manuals, and some of the permitted techniques that remain
there. It would be interesting and useful to hear the UK Government
say what they think about those issues, given that background
of being consistently reticent on such matters.
Q3 Mr. Illsley: The Committee
has had a bit of an argument with successive Foreign Secretaries
over rendition, because when we asked questions in our meetings
we were given assurances that Britain did not do it, yet they
were later retracted on the Floor of the House of Commons when
the Foreign Office actually found details of when we had been
complicit in rendition. My question to you is, do you believe
that the Americans who have admitted to rendition were doing this
regardless of what the UK thought, do you think they were doing
it with UK complicity or do you think they were doing it without
the UK Government knowing?
Kate Allen: I think that is what
should be the issue of some further investigation. But I think
that at a minimum what we see is a complete lack of grip by the
British Government in terms of who is passing through British
territory. We see a lack of control. We have seen false information
given to Parliament on this issue, and we see a rather passive
response by the UK Government in asking the American Administration,
but not being able to look at their own records, being very minimalist
in the questions that they are asking and the definitions of rendition
that they are using. So for us at Amnesty International, the answer
to your question lies in having a thorough investigation into
these issues. The investigation should find out not only what
was happening at Diego Garcia and what the controls are in terms
of other parts of the world—other airports. The issue is
not just the transmission of people; we at Amnesty have serious
concerns about the issue of planes on the rendition circuit that
may have used British airports. We are not suggesting that they
had people on board, but we are suggesting that there may well
have been planes that were part of the rendition circuit on their
way to or on their way back from, and these issues absolutely
deserve further investigation.
Benjamin Ward: To echo that, we
feel very strongly that there needs to be a full judicial investigation
looking at UK policy, not simply looking at individual cases but
looking at the full ambit of UK policy in relation to intelligence
co-operation with third countries, complicity in torture and renditions.
I also think that the election of the new President in Washington
and the statements that he made soon after coming into office,
particularly in relation to torture, provided an opportunity for
the UK Government to point to Washington and say, "Look,
now there is an opportunity to really draw a line under what has
been happening in the past five or six years," and to put
in place some really effective measures to deal with it. We have
had little bits and pieces. We have had the announcement of the
making public of the rules for MI5 and MI6 agents, although they
have not yet come out. We have had the decision to refer some
of the allegations of abuse to the police. But what we have not
had is any kind of systematic effort to look at the legacy of
the abuses that we have seen, or a very clear signal from the
UK Government that they want to change the approach that they
have taken, and that they see this change of Government as an
opportunity to do so.
Clive Stafford Smith: In direct
answer to your question, though, I think it is very important
to stress that there is zero probability that the British officials
did not know about rendition and were not complicit in it. ***
The question is who knew and what they knew. A bit of ostrich
work is going on here—a lot of people didn't want to know
some things. The real question here—the real question for
various folk—is, how high up did this knowledge go? One
thing that I should stress, from my perspective personally, ***,
is that we are not interested in persecution; we are interested
in making sure that this does not happen in the future. I think
that that is important to focus on.
Chairman: We shall come on to *** in
detail in some later questions. I would prefer to clear up the
general questions at the moment.
Q4 Sir John Stanley: Mr. Stafford
Smith, in your opening remarks you referred to two so-far unnamed
individuals who had been rendered to Afghanistan. Can you tell
us the nationality of the two individuals and why, for the American
Administration, Afghanistan was the place of choice to render
the two individuals to?
Clive Stafford Smith: Actually,
I am rather hoping that you will be able to help me on this. I
think it was the Secretary of State for Defence who admitted that
Britain had been involved in two renditions in which the British
had turned people over—to the Americans—who were rendered
to Afghanistan. They are still there. We understand that they
are Pakistani nationals, but we do not know their names. When
you distil it down, it is this: the British Government have admitted
that we were involved in something that is illegal under British
law. Indeed, if we were able to represent these people for free,
as we would be happy to do, we would ***—get British Government
assistance to reunite these two chaps with the rule of law. It
is inconceivable to me, quite frankly, that the British Government
can say publicly, "We admit that we committed two criminal
acts, but we are not going to tell you who the victims of those
acts are." We cannot represent these people, we cannot help
them, unless we know what their names are. I very much hope that
you folk will help us identify these folk. I should add that while
the Government said that there were two people who were rendered
from British custody, there are more than that. We have already
identified other people. If you read the letter from the Minister,
where he says what he says, he is very careful to say that he
is only talking about people who are absolutely in solitary British
custody. He is not dealing with British soldiers who are working
arm-in-arm with the Americans. We have already encountered, located
and interviewed an individual who was in British custody for a
while in Iraq and subsequently rendered to a secret prison; they
worked out that he was no one and set him free, and he is now
in Yemen. We have interviewed this guy. There are others too.
I think that it is very important that the Committee follow up
on these issues if you can.
Q5 Sir John Stanley: But where
did these two Pakistanis start from? Did they get rendered to
Afghanistan for ease of proximity? Was it a language factor? Was
it because that was the place where the Americans had what they
regard as the appropriate facilities?
Clive Stafford Smith: What the
Minister says in his letter is that the Americans represented
that they rendered these guys to Afghanistan because they didn't
have the language facility in Iraq.
Sir John Stanley: In what?
Clive Stafford Smith: They did
not have the language facility for interrogating them in Iraq.
It is slightly hard to believe that the Americans had no Arabic-speaking
people in Iraq. That is something that is worth exploring.
Q6 Sandra Osborne: May I ask you
some follow-up questions about the allegations of UK involvement
in rendition? Would you differentiate between rendition and extraordinary
rendition?
Clive Stafford Smith: I wish someone
could tell me what the difference is. As a lawyer, the legal term
is kidnapping. Rendition is one of these euphemisms that we have
seen far too many of in this whole process. Honestly, no, I have
no idea if there is a difference. This is something that has gradually
evolved over the past few years. It is not actually a useful term
at all. I think that we should just get back to the rule of law—if
you want to move someone involuntarily from one country to another,
you use legal procedures.
Kate Allen: But we should be clear
that the British Government do make a distinction. They talk about
extraordinary rendition, by which they mean torture happens, then
they talk about rendition, which is, exactly as Clive says, that
moving of people around the world—disappearing them—but
not necessarily involving torture. But it is illegal to deal with
people in that way. There is a UN convention on enforced disappearances
on which Amnesty has been campaigning for some time. We would
be pleased if the British Government would sign it. It is one
of the few signatures, in terms of Europe, that is not on that
convention. The British Government suggest to countries such as
Sri Lanka and Pakistan that they might like to sign up to the
convention. It would be interesting if this Committee would ask
the Foreign Secretary what discussions he has had with the US
Administration about this convention and whether any of those
discussions are getting in the way of the British Government signing
up to the UN convention on enforced disappearances.
Q7 Sandra Osborne: In terms of
the cases of the further allegations, along with the two that
the Government have owned up to, what do you think should happen
about that? What is your view? You have already said that you
know for a fact that it is happening. Can I ask the others their
view and what they think should be done about it?
Benjamin Ward: What we have here
is what appears to be, as Clive has suggested, at best a wilful
ignorance and at worst a complicity. The only way that this can
be tackled is through a full independent judicial investigation.
While I think that the individual criminal investigations are
very welcome and should be pursued, I fear that, as has happened
in the United States around the abuses that took place at Abu
Ghraib, the individual prosecutions will be used to put forward
a narrative that those abuses were the responsibility of a few
bad apples and that they were in no way a result of a set of policy
decisions and a set of policy choices that were made by the Government.
That is why I think that a full inquiry is so important.
Kate Allen: There are now so many
incidents that need investigation that there is an absolutely
overwhelming need for that independent investigation. This is
no longer just a few situations—we are hearing of more and
more cases, and more and more issues are coming into the media.
The case for that investigation is overwhelming.
Q8 Sandra Osborne: There is not
very efficient record-keeping, to put it mildly, in relation to
flights, for example. Do you think that some kind of an international
agreement in aviation law could be made in order to improve records
of what has been happening?
Benjamin Ward: We were very supportive
of the initiative by the all-party parliamentary group on rendition
to create a permission system for rendition flights, including
for overflights, similar to that which exists already in extradition
cases under the European Convention on Extradition. That proposal
was put forward to the Government in 2006 and, as far as I am
aware, nothing ever came of it. Obviously that would not entirely
eliminate the risk of transfers, but effectively requiring a transferring
state to certify, in advance, what opportunity the prisoner had
had to challenge any risk of human rights abuse that they might
be subject to would make it much more difficult and much less
attractive to use UK territory and UK airspace for such transfers.
It would be a very important and symbolic change and it is not
clear to me why that was not taken up.
Q9 Sandra Osborne: Did the 2002
renditions at Diego Garcia breach the agreement that the US and
the UK had about the use of the island?
Clive Stafford Smith: I feel very
confident that they did—those, and some other things that
I think we will probably discuss in more detail in a little while.
There is no doubt that it violated that agreement, but it violated
a lot of other things. British law applies in Diego Garcia, notwithstanding
what some other people have said. It has very interesting aspects.
In fact, the law provides for a Diego Garcia supreme court that
is meant to apply British law, of which there is no such thing.
Perhaps one of you would like to be the supreme court justice.
It is not there at the moment, and we need to appoint one. The
whole process has been one to skirt the law, and we will later
get to the fact that it has not been just two people who flew
through Diego Garcia, but that people have been held in ships
off Diego Garcia, which I shall be glad to talk about if you would
like me to do so.
Q10 Sandra Osborne: That has,
I believe, been denied by the Government.
Clive Stafford Smith: Yes, but
they denied some 54 times requests for information about people
who have been flown through Diego Garcia.[2]
Sometimes they don't know, honestly, but that is almost as worrying
as people denying things that they know are true, isn't it?
Q11 Sandra Osborne: Finally, do
you believe that you have identified one of the individuals who
was rendered in 2002? How hard is your evidence? Have you raised
it with the Government? If so, what sort of response have you
had?
Clive Stafford Smith: We have
had zero response from the Government. Our evidence is, I think,
pretty much indisputable. His name is Mr. Madni. We had identified
the planes that have flown through Diego Garcia, and those plane
logs have been tremendously useful because we get them before
we talk to the prisoners. We don't tell the prisoners that we
have the plane logs, so you can corroborate or disprove what the
prisoners are telling you, based on some very concrete evidence.
We had the details of the plane flight that matched the public
reports about Mr. Madni's rendition from Indonesia. Now we have
talked to him. We have tracked him down. He is in Pakistan. He
is now free. In every way, he matches what the Government said
and he says that he was taken to Diego Garcia. I don't know how
much more one wants. Under those circumstances, there are two
questions that we need to ask. First, when the British Government
finally, belatedly, admitted that it had happened, they said that
two people had gone through Diego Garcia. I immediately wrote
to Mr. Miliband asking him please to tell us who they are so that
we can help to represent them because clearly again, we are talking
about complicity and the British Government are under a legal
obligation to help us to help them be reunited with their legal
rights. The British Government refused to do that. I found out
later who it was, but we found that out actually after Mr. Madni
had been freed from Guantanamo Bay. They would never admit it,
but we can identify the other person as Shaikh Ibn Al-Libi, although
we are by no means certain. I am sure that some of you are familiar
with his case, but the reason why it is so important is that Shaikh
Ibn Al-Libi was rendered by the United States, we believe through
Diego Garcia, to Egypt where he was tortured. Under torture, he
said that al-Qaeda was in league with Saddam Hussein on weapons
of mass destruction. What he said under torture was quoted by
George Bush and, to his eternal shame, by Colin Powell at the
UN, as one of the legs of the case for war in Iraq. Even by that
time, the CIA was saying how Libya had been very unreliable, which
is not surprising. We now know that the torture evidence was false.
We are 100,000 lives on from that false evidence. The reason why
it is so important for this to come out into the public view is
not because it will do any good for Mr. Al-Libi. He died two weeks
ago in Libya. What is so important is that we learn from history,
and we cannot learn from history if we don't know what that history
is. Again, we are not asking here for anyone to be prosecuted,
let alone persecuted. We just want the truth out, so that next
time someone wants to start arguing in a state of panic for torture,
we have a strong case to tell them that it is not a good idea.
Q12 Sir John Stanley: I am just
following your answer in this group of questions. Is it not the
case that there is an important distinction to be made between
rendition and extraordinary rendition? Is it not the case that
under US legislation, as passed by Congress, powers of rendition
exist—legal powers passed by Congress?
Kate Allen: I will defer to Clive
on the legalities in the US, but to be clear about extraordinary
rendition or rendition, people are being moved outside of the
due process of law—outside of any methods of extradition.
We, at Amnesty, have absolute clarity that rendition is illegal,
as is extraordinary rendition. Just because you do not torture
people does not mean that snatching them off the streets in one
country, putting them on your plane and taking them to another
country without any due process somehow becomes legal. That is
why we talk about the UN convention on enforced disappearances,
and we wish to see the UK sign up to it.
Q13 Sir John Stanley: On that
point, on the basis that rendition has its origin in US legislation,
are you saying to the Committee that that piece of US legislation
is in breach of international law?
Kate Allen: Perhaps I could ask
Clive to answer that.
Clive Stafford Smith: I am not
familiar with any US legislation that makes it legal. I will tell
you what the distinction is. In the case that came before the
US Supreme Court, a drug dealer had been kidnapped out of Mexico.
It was a real kidnapping: some private people went down there,
snatched him and brought him to America, where he faced trial.
The US Supreme Court held that under those circumstances, where
he was "rendered to justice", he cannot claim that he
could not be prosecuted because he was illegally seized, even
though the act itself was illegal. It is like when you have an
illegal search and you don't suppress the evidence even though
the search was illegal. You have a second course of action, which
is you can sue the people who kidnapped you, if you wanted. That
is the distinction. I don't think there is any argument that rendition
per se is legal under anyone's law that I know of—except
perhaps Kazakhstan; I don't know. Maybe it thinks that it is legal.
Benjamin Ward: I think that that
is absolutely right. In a way, the argument about rendition to
justice is a bit of a red herring. It is put forward as an example
where, because in some instances it produces outcomes that may
be deemed acceptable, it means that one should not take an unequivocal
position against rendition as a whole. One should not fall into
that trap. It is, as my colleagues have said, kidnapping or abduction—whatever
the outcome may be.
Clive Stafford Smith: May I make
a brief point on that? The argument that you need to do that is
just legally wrong. If you think over history, about the problems
that we have had using legal systems to bring people to justice,
a far more difficult situation than our current one was the Colombian
one. Colombian cartels were killing justices if they voted to
extradite people. That was really tough, yet we did not render
people from there. Today, it is actually not that difficult, in
most countries, to take a suspect—an al-Qaeda suspect or
whoever it may be—and legally extradite them. It just isn't
that hard.
Benjamin Ward: Perhaps another
point to make is that many of the crimes that the people are accused
of can be prosecuted in the country in which they are present.
It is not necessary for them to be transferred to the US for prosecution
there.
Q14 Ms Stuart: I want to move
on to torture, but before I do, I have heard all three of you,
so far, calling for an independent judicial inquiry into Government
policy. It may be worth reminding ourselves that, in a sense,
we are a judicial inquiry into Government policy. When I look
at your press releases, Mr. Stafford Smith, in one you described
new evidence of the UK complicity, and in another one, you said
that you will reveal the identity of ghost prisoners illegally
rendered to torture. If you have that evidence, it is incumbent
on you to provide it. Unless we have evidence rather than your
assertions of certainty, we cannot do our job. This is a Committee
that knows the limits of our powers of inquiry, because in the
David Kelly case we ended up realising that we could only go so
far in our inquiries when the judiciary came in. Can I make a
plea for that? Rather than assertion, if you give us evidence,
we can pursue it. That is one of the reasons why we have private
sessions.
Clive Stafford Smith: I haven't
actually commented on inquiries. I am absolutely in favour of
you folk calling it an inquiry. We have submitted the evidence
on Mr. Madni ***, and we will submit the evidence on Mustafa Setmarian
Nasar, who we can show was held in Diego Garcia. I think that
it is great—you can expose the facts to the world, not necessarily
to get anyone in any trouble, but just to ensure that people know
about it.
Kate Allen: When we raise these
issues we are told that the Intelligence and Security Committee
is getting all this information and is making inquiries. From
the perspective of Amnesty International, the Intelligence and
Security Committee is appointed by the Prime Minister, reports
to the Prime Minister, and the Prime Minister decides what the
rest of us see. That is not an investigation that Amnesty International
could have confidence in. I am not casting aspersions on the Committee.
Andrew Mackinlay: Do.
Kate Allen: As I said earlier,
there is more than enough evidence in terms of some of the issues
that we have yet to come to, such as dual nationals in Pakistan,
*** and other issues, and there are more than enough cases to
warrant an independent inquiry. Such an inquiry should be able
to call on evidence, and decisions about what evidence is confidential
and what is not, should be made not by Government officials but
by an independent judge. We could then get to the bottom of these
issues for the reasons that all of us on this side of the table
have been talking about. We must ensure that we understand what
happened and why it happened, and that systems are put in place
to ensure that it can never happen again. What has been taking
place is a real blot on this country.
Q15 Ms Stuart: Let us focus on
torture. The Foreign and Commonwealth Office tells us that it
does not participate in, solicit, encourage or condone the use
of torture. Mr. Stafford Smith, you say that that claim is simply
not true. What is your reason for saying that?
Clive Stafford Smith: I am not
sure that I would say that the claim is not true. People in the
Foreign Office would say that they are totally opposed to torture,
and I think they would mean it. The question is about whether
they go along with it, either by sticking their head in the sand
or by actively knowing that it is happening and participating
in it. ***. We have submitted most of the evidence, although something
has come up recently and we will submit some more to you. ***.
***. We must ensure that the British Government are clear about
their policy to everyone, be they FCO officials or intelligence
officials. When someone learns that torture is happening, they
have got to stop it. It doesn't matter what the protocols with
the Americans are; it doesn't matter whether we might offend ***.
We must stop torture and that is what we want to make clear. We
will submit everything that you have not already got on that.
Again, I am not asking you to harass Mr. Miliband, but we want
to make it clear what the policy is now, ***.
Q16 Ms Stuart: You would have
to change the assumption that omission is not the commission of
an offence.
Clive Stafford Smith: Yes.
Q17 Ms Stuart: The Government
also say that when they find evidence of torture, they do their
utmost—in cases such as those of Pakistan and Egypt, where
allegations of wrongdoing are made, they are taken seriously and
investigated appropriately.
Benjamin Ward: I am afraid that
in relation to Pakistan, our research does not bear out those
assurances. The UK relies on the Inter-Services Intelligence agency
in Pakistan, which is well known for its use of torture in its
counter-terrorism operations. Our research indicates that British
Government agents put questions to detainees in ISI custody and
visited detainees, who had obviously been tortured, without halting
co-operation in those cases. We made that evidence available to
the Joint Committee on Human Rights, and we also included a link
to it in our submission to this Committee. It is simply not credible
that UK Government officials visiting detainees in ISI custody
could be unaware of the torture and abuse that they were subject
to. We take the view that asking the Pakistani security services
to interrogate a detainee suspected of terrorism, without being
present to ensure the person is not mistreated, or conditioning
co-operation on an end to these practices, is essentially a request
to use torture to obtain information.
Kate Allen: Amnesty International
would agree with that. The record of the ISI in Pakistan is long.
It goes back many years and it is well known. There should be
an assumption that, if people are being interrogated, torture
is being used.
Q18 Ms Stuart: Same for Egypt?
Benjamin Ward: We do not have
specific information in relation to Egypt. The only thing I would
say about Egypt is that we were very dismayed to see that there
was no criticism of Egypt's record on torture in the human rights
report. We wonder why that is. But we do not have any specific
evidence in relation to co-operation and abuse in Egyptian custody.
Q19 Ms Stuart: The British Government
are caught here between a rock and a hard place when we talk about
intelligence. If we have intelligence relationships with countries
that we know use torture, one option to ensure that you never
use evidence that was obtained by torture is to cease the intelligence
relationship with that country. They aren't going to do that,
are they? But what would be the kind of things the British Government
could do—you already mentioned one in relation to actually
being present—to ensure that we do not implicitly encourage
and condone torture?
Clive Stafford Smith: ***. So
there are several things we can do. First, we can change that.
The British Government's obligation is actually to comply with
the convention against torture, which says that when you have
evidence of torture you are legally obliged to investigate it
and expose that material. That is pretty simple. The second is,
in taking account of your very reasonable concerns about intelligence
sharing, we have to make it clear to the people with whom we share
intelligence that we are not going to suppress the evidence of
torture that we come across. That is the position being taken
by the Government right this second. Under section 52 of the International
Criminal Court Act 2001, that is an independent criminal offence.
To conspire with someone else to suppress evidence of torture
is a criminal offence, and our Government cannot be in that position.
There is the possibility that *** will not write in their reports,
or the Americans will not write in their reports, that they waterboarded
this chap, so we will not know about that. That is a possibility.
But if we do learn about torture, our allies, and our slightly
dubious allies in some circumstances, need to know that we are
not going to go hand in hand with them in committing the crime
of conspiracy to hide evidence of torture. I think that is pretty
reasonable.
Kate Allen: The Intelligence and
Security Committee has been given the job by the Prime Minister
of reviewing the guidance that is given to intelligence operatives
in these situations. We expect that that will then be made public.
That is good. It seems to me that it would be interesting for
Parliament to see the original guidance. Perhaps that is something
that the Foreign Affairs Committee could ask to see. What was
authorised and what was the guidance to individual intelligence
officers finding themselves in these situations? Not what guidance
is going to be—that is great—but what the guidance
was. It would be very interesting to know what guidance intelligence
officials were given in those situations that we are now talking
about.
1 Ev 67, 71 Back
2
Note by witness: We have documented 54 PQs and other requests
about Diego Garcia between January 8, 2003 and October 11, 2007. Back
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