Examination of Witnesses (Question Numbers
100-119)
RT HON.
DAVID MILIBAND
MP, SIMON MANLEY
AND SUSAN
HYLAND
16 JUNE 2009
Q100 Chairman: You said "in
our view". Do the US Administration have a different view
of the basis on which they are using Diego Garcia?
David Miliband: No, because the
US Administration have said that they will consult us if they
ever want to use it. So they obviously share that view.
Q101 Chairman: Would you say there
is a case for renegotiating the current agreement, either now
or when the lease expires in 2016?
David Miliband: Why would we want
to do that?
Chairman: If things have happened that
are not in line with what we wished.
David Miliband: If the American
Administration were now saying that they did not need to consult
us, that would be a prima facie case for reviewing the arrangements.
I am sure in 2016 we will want to look at whether they are adequate
for the times; there is no limitation on that. In respect of the
use of Diego Garcia for rendition there is an absolutely clear
position from the British Government and the American Government
about the appropriate way to act. In that respect, there is no
lack of clarity.
Chairman: I will bring my colleagues
in. First, John Stanley.
Q102 Sir John Stanley: Foreign
Secretary, can you give the Committee an assurance that no individuals
subject to rendition by the United States have been held on vessels
in Diego Garcia waters?
David Miliband: Yes, we have said
that in Parliament, in written form, and in oral form as well,
I think. We have assurances from the US that there have been no
people rendited on boats or ships in Diego Garcia territorial
waters.
Q103 Sir John Stanley: You inserted
the word "territorial". I do not know whether you have
been to Diego Garcia, Foreign Secretary. I have.
David Miliband: I remember from
a previous occasion that you have been to Diego Garcia.
Q104 Sir John Stanley: Diego Garcia
is made up of a considerable number of islands. It would be wholly
possible for a vessel to be held just outside territorial waters
and victualled from the very large American base in Diego Garcia.
Did you insert the word "territorial" in that answer
deliberately?
David Miliband: I chose my words
appropriately. I was not seeking to answer your point before you
made it. But to answer the point: we have no information, either
of vessels inside territorial waters being used for rendition
or of supplies from Diego Garcia going to ships outside the territorial
waters.
Q105 Sir John Stanley: You say
you have no information. Can I ask you, Foreign Secretary, under
the agreements that the British Government have with the Americans
on the use of Diego Garcia, would the British Government's prior
consent be required for the use of Diego Garcia as a victualling
point for vessels held outside territorial waters, on which people
subject to rendition might be held?
David Miliband: I think that is
a legal question on which I would want to have the text of the
agreement in front of me before I answered. I am very happy to
answer it clearly, but it is a legal question, and I would need
to be sure that I was answering it absolutely accurately.[1]
Q106 Sir John Stanley: I understand.
This is a substantive policy question, and we would be very grateful
for a written answer on the question of whether the British Government's
prior consent would be required for vessels held outside Diego
Garcia's territorial waters to be victualled at the American base
on Diego Garcia.
David Miliband: Okay.
Q107 Mr. Keetch: Moving on from
Diego Garcia, isn't a problem emerging with our closest ally?
You will find no one on this Committee more pro-American than
me. However, the US, under the previous Administration, rendered
people through Diego Garcia without telling us. Just a couple
of weeks ago, the present Administration, for which I campaigned,
and which you support, released people from Guantanamo Bay to
Bermuda—another Overseas Territory—without telling
us. I have asked in the past about the use by US aircraft of the
British base at Akrotiri on Cyprus. US aircraft are used extensively
on Ascension. How would the United States feel if RAF planes,
some with roundels on, but others with no recognition markings,
were going in and out of Andrews Air Force Base or US facilities
in Guam or Puerto Rico, for example? I am sure that they would
require us to provide details about what was on the planes and
what they were being used for. I would like a simple assurance
from you that the US Air Force—or, indeed, any air force
with which we are friendly—cannot use facilities on British
overseas territories unless they do so under the same regulations
by which we use theirs. In other words, can you assure me that,
if the US air force is using Diego Garcia, and the RAF is using
bases in America, we can use its bases in the same way as they
can use ours? We need a joint agreement on that. It seems to me
that effectively the US uses our bases without any regard to the
fact that they are using British territory.
David Miliband: I do not agree
with your last point. You said that Americans use our bases without
any regard for our interests. I do not accept that. We have written
and published agreements, so the rules on sharing Diego Garcia
are there for you to see. It is used as a shared resource. They
use it under the terms of the agreement. In two cases it was found
that they did not do so, and since then, as you will know from
various reports, the record keeping and other procedures have
been updated. Each year we hold political-military talks about
such issues to ensure refreshment of practices and to ensure that
things are done correctly. I agree that agreements with the United
States, and those with any other country, need to be honoured.
That is the right way of doing things. We have entered into that
agreement—or our predecessors did, and we have chosen not
to change it—for good reasons. It is in the interests of
the United Kingdom, and whether something is in the interests
of the United Kingdom should be the test. The test for what we
are doing on Diego Garcia is whether it is in our interest, and
not whether it is the same as our landing rights at Washington
Dulles airport. I think that is the right test.
Q108 Chairman: You referred to
record keeping, but is it not a fact that a parliamentary answer
last November stated that records since 2001 had all been destroyed?
David Miliband: There is certainly
a lot of evidence about the need to improve record keeping. This
was something that Jack Straw took up very strongly in 2004-05,
including before this Committee. There has obviously been a very
difficult shift from the paper age to the computer age in respect
of record keeping and filing. All Government Departments and public
bodies are having to upgrade for that.
Q109 Chairman: Will you be releasing
details of when, why and by whom the records relating to Diego
Garcia since 2001 were destroyed?
David Miliband: I have never been
asked that before and there is no proposal to do it. The record
keeping systems that have to be improved are partly a matter of
what happens on the base and partly a matter of what happens back
in London. In respect of all detainee issues, there is now a central
point in the Foreign Office for arranging that, and I think that
is the right way forward.
Q110 Chairman: But in terms of
the records for the period around 2002, which we are questioning
about, you do not have any records. It is only on the basis of
what the Americans told you, which led to your statement last
year, that this information has come out at all.
David Miliband: Absolutely. Just
to be clear, the information came out because the Americans found
it; they found it and they told us. We said, very clearly, that
our understanding of the agreement in respect of Diego Garcia
was that there had to be agreement. They subsequently said, "We
give you absolute assurance that, in all future cases, there will
be; we will see that agreement." So there is no mystery about
that. All flight records are now held by the British representative.
Q111 Chairman: Since when?
David Miliband: Since 2008, when
the Americans told us about the two flights in 2002.
Q112 Mr. Pope: This question is
on a different area. When British agents co-operate with agents
of another friendly country—Pakistan in this instance—over
particular detainees held in Pakistan, are there any instances
in which our agents have been aware that those detainees in Pakistan
have been subject to torture? If they were aware, did they make
Ministers aware?
David Miliband: There are eight
cases, I think, where allegations of mistreatment have been made.
I prefer to use the word "mistreatment". Two of them
involved British nationals and we were made aware of them. Does
that answer your—
Q113 Mr. Pope: What I am really
trying to get at is whether there is a gap between the knowledge
held by British agents about not just British detainees, but other
detainees on whom we are co-operating, and what Ministers know—whether
there has been an instance in which agents have been aware of
mistreatment, or torture, and have not made Ministers aware.
David Miliband: This was addressed
pretty head-on in the two ISC reports. Sorry to mention the ISC,
but it was detailed with some care. Because of the sub judice
points that the Chairman referred to, obviously I do not really
want to rehearse them, but on the public record are the arrangements
that used to exist and the arrangements that now exist in respect
of the SIS and other officers. There is also the point about Foreign
Office consular guidance, to which I referred earlier.
Q114 Mr. Pope: Looking forward,
are you now confident that there are clear guidelines so that
British agents co-operating with, for example, Pakistan or Egypt,
will not in future co-operate on cases where somebody is subjected
to mistreatment or torture?
David Miliband: There is now very
clear guidance. The ISC went through the period between before
2004, when guidance was informal, to the period since 2004 when
the guidance is now comprehensive, including comprehensive legal
advice to all officials. It is important to say that under the
convention on torture—I think it is article 11—we
are duty bound to keep our guidance under review, which we do,
and we update it. Since 2004, that guidance has been updated,
because we take seriously our responsibilities on that. It is
also important to say that the other side of the equation is what
do the authorities of other countries know about our attitudes?
I think that at both political level and official level, there
is very clear—or certainly clearer—understanding than
there might have been in the past about the position of Britain.
Certainly, there is no question that if ever there was a request
for a British agent to do something which involved co-operating
with torture, a Minister would ever agree to it. Of course, all
the activities of British agents, or British officials, are subject
to an approval process that involves Ministers.
Q115 Mr. Pope: I can see this
is a difficult area, when we have agents working with countries
such as—
David Miliband: Officials—I
think that is better than agents, if I may say so.
Mr. Pope: Okay, officials. Working with
officials with Pakistan's ISI—
David Miliband: Agents are a different
kettle of fish, I think.
Mr. Pope: Okay, I am happy to say officials.
But how do we maintain the intelligence relationship and keep
it intact at what is, frankly, a crucial period when it is important
that we have good intelligence relations with Pakistan's intelligence
services, while at the same time ensuring that our officials,
or indeed agents, are not unwittingly complicit in mistreatment
or torture?
David Miliband: That is a really
important point that shows the benefits of this sort of session.
The one-word answer is clarity. You have just written that down—thank
you very much. I managed to get there before you. Clarity is very
important—clarity about our own domestic and international
legal commitments, clarity about the attitude that we take, and
clarity about our view of what is right. Clarity doesn't mean
that there don't have to be judgments. As I wrote in my letter:
"Some other countries have different legal obligations—and
different standards—to our own in the way they detain people
and treat those they have detained. That cannot stop us from working
with them"—as you said, Greg—"where we can,
in order to protect this country's national security, but it does
mean we have to work hard to ensure we do not cooperate or collude
in torture, and to seek to reduce and eradicate it." I then
go through some individual cases and end by stating that "operations
have been blocked on the grounds that the risk of mistreatment
is too high. Equally, it is not always possible to eradicate the
risk of mistreatment. A judgement needs to be made." I think
that is the clearest way of explaining the issue. In that context,
risk is obviously measured on the basis of what we know, what
the record is, what the history of different relationships is,
as well as the commitments that different countries make to us.
We should be clear that knowledge of our legal obligations and
standards means that countries may make commitments to us about
the way they will treat detainees that they would not necessarily
make to others.
Q116 Mr. Keetch: Let me try to
help you bring some more clarity to the situation, Foreign Secretary.
On the guidance that is given to intelligence officers and service
personnel, the Prime Minister has said that we will publish new
guidance once it has been consolidated and reviewed. Do the Government
then also undertake to publish what the guidance has been? In
other words, will they publish the historical guidance that might
have been given at the time we were looking into these cases?
David Miliband: No, we won't,
not least because of the legal cases that are under way.
Q117 Mr. Keetch: At the conclusion
of those legal cases, might it be appropriate for the Government
to publish the historical guidance?
David Miliband: The guidance has
already been subject to scrutiny by the Intelligence and Security
Commission, which is represented by the dreaded three letters,
ISC, that you do not like to mention. I want to refer to the ISC
for a moment. As all of you have already shown in your questions,
we have to square a circle between secrecy and accountability.
All of you totally understand the need for secrecy, and you want
to ensure accountability. I too want to ensure accountability,
because effective checks and balances are the way in which we
ensure that systems are as robust as possible. I am sorry that
Menzies Campbell is not here, because he is a member of the ISC.
The way it is set up squares the circle between accountability
and secrecy. I know that it is difficult to keep saying that nothing
we publish must give succour to our enemies—that is obviously
true. Equally, we must ensure that everything we do is subject
to an appropriate check and balance. As I have said, legal cases
are ongoing at the moment, so it would not be the right thing
to do. Parliament has set up an accountability process, and until
Parliament changes it, we should be very wary of changing it ourselves.
Q118 Mr. Keetch: Presumably, the
guidance that the Government have said they are going to publish
will not provide succour to our enemies. If we are not prepared
to publish the guidance that we used to have, one might draw the
conclusion that that might provide succour to our enemies.
David Miliband: No, I don't accept
that. What I said was that we will not publish it now because
there are legal cases ongoing. By implication, you accepted that
that was not an unreasonable answer. There is then a bridge quite
a long way further down the road that might have to be crossed.
I also pointed to the existing accountability system.
Q119 Mr. Keetch: Okay. May I move
on to a couple of other things? In terms of any interview by an
official from an overseas security service or agency, do British
or dual nationals always receive consular advice from British
officials, if British officials are aware that they are to be
interviewed by security officials from other agencies?
David Miliband: We always try
to seek consular access. Let us deal with British nationals first,
because things are slightly different in the case of dual nationals.
In respect of British nationals, where there are risks of mistreatment,
we certainly seek to provide consular access—it is the first
thing we seek to do—but that does not mean that we are always
granted that access, as you know. In respect of dual nationals,
there is a rather more complicated situation, which partly explains
how I answered Greg Pope's question earlier in respect of the
at least eight cases. There was a rather more complex pattern
there about risk or allegations of mistreatment and what that
triggers. In the future, we will establish the same standard for
dual nationals as for mono nationals.
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