Examination of Witnesses (Question Numbers
120-139)
RT HON.
DAVID MILIBAND
MP, SIMON MANLEY
AND SUSAN
HYLAND
16 JUNE 2009
Q120 Mr. Keetch: Let me be clear.
If I was an official working for the British intelligence services,
and I was aware that a British national was about to be interviewed
by a foreign intelligence service, in either that country or a
third country, do I recognise that it is my duty to inform the
British embassy and advise the individual that they have the right
to consular advice before the interview?
David Miliband: I am trying to
imagine the situation. If a British official is in another country,
there are very clear mechanisms for the different parts of the
British Government to be connected together—that is what
I would like to say. I don't know if you want to add to that,
Simon.
Simon Manley: I think that is
fine.
Q121 Mr. Keetch: My final question
is on the practice of waterboarding. President Obama now accepts
that their definition of waterboarding is torture. Are we satisfied
now that as far as we are aware, the US is no longer involved
in what we would define as waterboarding?
David Miliband: One of President
Obama's reviews is addressing interrogation practices, and it
is due to report in six weeks' time.
Simon Manley: On 22 July.
David Miliband: On 22 July. From
the President's speech at the CIA in March, his position is pretty
clear. When the issue arose last year, I was asked whether we
considered waterboarding to fall foul of the torture convention.
I think people were surprised when I said, "Yes, I think
it fell foul of that," but we have always been clear about
that.
Q122 Mr. Illsley: First of all,
on the point you made about the accountability of the Intelligence
and Security Committee, given the long-standing interaction between
that Committee and ourselves, I must repeat the point that the
ISC is accountable only to the Prime Minister. Moving on, you
mentioned the question of the US definition of waterboarding.
There is a clear difference—you mentioned this in your letter—between
what the UK regards as torture and what other countries regard
as torture, particularly the Americans, in terms of waterboarding
and so on. We have talked about other countries detaining British
nationals and others. If we know that those countries could perhaps
be employing techniques that we regard as unlawful or torture,
is there any case for any British official to be present at all?
Isn't the fact that British officials are present at all during
the interrogations tantamount to us condoning that treatment,
whether they are there when it takes place or not?
David Miliband: No, for the following
reason. If a British official is present while mistreatment is
taking place, there are very clear rules about what he or she
should do to report it and pull up whoever is doing it—that
is absolutely clear. Those rules have been reviewed publicly and
they have developed. As I said earlier, the guidance was informal
before 2004; after 2004, it was more formal. A country might have
particular rules for the way it treats suspects when it is working
with us, which are different from those that it employs when it
is dealing, for the sake of argument, with its own internal security
issue.
Q123 Mr. Illsley: That is exactly
the point I make. If we know that a country employs those techniques,
and they say, "Okay, we're not going to employ them, we have
an agreement with the UK. Anybody else's nationals, we'll kick
hell out of them, but if they're British, we'll leave them alone,"
should we really have our officials present in dealings with that
country when they are interrogating, whether the mistreatment
takes place or not?
David Miliband: They would not
be there in the case of foreign nationals.
Q124 Mr. Illsley: British nationals?
David Miliband: If British nationals
are being interrogated according to the appropriate legal standards
that we hold, then for us to say, we will have nothing to do with
that country because of what they are alleged to do in other domains,
would be a very big thing to do.
Q125 Mr. Illsley: Then we are
condoning a double standard, aren't we?
David Miliband: No.
Q126 Mr. Illsley: Yes, we are.
We are saying, "We have an agreement that you don't do it
to ours, but you can do what the hell you like to anybody else's."
David Miliband: If that was the
end of the story, you might have more grounds, but remember, we
have responsibilities in respect of any liaison that we do. We
also have responsibility, which I mentioned in the letter, to
make clear our determination that other countries should improve
their standards. We have commitments under international law and
conventions to seek to reduce the amount of mistreatment that
happens elsewhere, and that is what we seek to do politically,
officially and at all levels. So I don't think that that is right.
I don't understand that.
Simon Manley: When we interview,
or get involved in the business of interviewing those who are
being detained, we do so because we genuinely believe that the
information that may be gleaned is important in helping to protect
British national security.
Q127 Chairman: In that context,
there have been allegations that officials have interviewed people
who are detained after they have been mistreated, and that questions
that had previously been asked by others, under what would be
regarded as torture, are then repeated later, in a different context,
by British officials, so that they are not present during the
torture, but they are present later. How would you respond to
that?
David Miliband: Mr. Chairman,
I really have to say, those are allegations—underlined,
allegations—that have been made in respect of cases that
are in front of the courts. I really think it is important to
say that very, very clearly.
Q128 Chairman: I accept the point,
but I place on record that I think that is where Mr Illsley's
questions were leading.
David Miliband: But allegations
can get kicked around and can become common sense and, for obvious
reasons, people cannot defend themselves. They need to be able
to defend themselves in court in an unprejudiced way.
Q129 Mr. Purchase: Let me take
you back just a few minutes, when you were asked whether you would
publish historical guidance, to which you replied, succinctly,
"No." Just to help me here, you also referred to ongoing
trials and people being charged and therefore you could not publish
historical instruction in regard to these matters. If people are
being interrogated, surely they are allowed to be in the very,
very best position they can be in to defend themselves? Will they
not have access to this historical guidance? If so, will it not
come out? If that is so, why can we not know what it is?
David Miliband: Surely, it is
a founding principle of our legal system that that is a matter
for the defence counsel. The defence counsel in any of these cases
can call for whatever papers they want.
Mr. Purchase: Exactly.
David Miliband: But the defence
counsel having the papers is not the same as putting them on the
internet.
Q130 Mr. Purchase: I accept that
there are material differences in those two, but ultimately, it
is out in the public arena.
David Miliband: No, that is not
actually right, Ken.
Mr. Purchase: I just see the way we are
dealing with some of these things as problematic.
David Miliband: I understand what
you are saying, but in all candour, that is not right. In legal
cases, all sorts of secret material is used, either to prosecute
or to defend, but it is not published in the public domain. That
is what the recent argument has been all about.
Q131 Mr. Purchase: You are clearly
going to stick with a one-word answer—"No." It
seems to me that, in this instance, where the defence lawyers
call for whatever papers they require—far be it from me,
and I would never do so, to ask for matters which might compromise
the safety of citizens in the state to be published—this
information or modus operandi at that stage ought to be known,
because it helps us to judge the efficacy and the ethical value
of our policies at that time. Without it we are handicapped.
David Miliband: As I said earlier,
before 2004, the guidance was informal. Since 2004, it has been
formal and has had a comprehensive legal basis. The Prime Minister
has decided—and I support this—that we should now
publish it. Given the civil cases—and in many cases they
are civil cases—that are currently being taken by a number
of individuals, that is a pretty clear reason why we are not in
a position to publish that material. It really would not be the
right thing to do.
Chairman: I think we have had the answer.
No doubt we as a Committee will want to look at the whole transcript
of what was said when we come to produce our report.
Q132 Mr. Pope: Could I ask about
a more general area—the use of intelligence from overseas
that has been garnered possibly through the use of torture? I
know that you like the ISC, so I will quote the ISC report.
David Miliband: Not as much as
I like you.
Mr. Pope: The ISC report on rendition
says that when intelligence information is shared, "The location,
circumstances or treatment of a detainee (or even the fact that
the source is a detainee) would ... not usually be shared."
In their evidence to the ISC, the Security Service said that high-value
intelligence had been garnered in such a way. Should the British
Government dismiss evidence when we have a fear that it may have
been obtained using torture from another power? If we do not,
is that not tantamount to creating a market for such intelligence?
David Miliband: The first thing
that I have to say, and I hope this is helpful, is that it is
very important not to use the words "intelligence" and
"evidence" interchangeably—I think that this has
muddied the debate. Intelligence that is derived from torture
is inadmissible as evidence in a British court—there is
absolutely no shadow of a doubt about that.
Q133 Mr. Pope: To be fair, I was
not talking about bringing a case to court. I am talking about
garnering intelligence that our security services have obtained
from a foreign security service where we know or suspect that
it has been obtained using torture or mistreatment, and it is
of great value to us. In fact, the Security Service said in their
evidence to the ISC that some of this "has led to the frustration
of terrorist attacks in the UK or against UK interests."
I am not talking about bringing a court case; I am talking about
the ethics of using this kind of information garnered in this
way—we know or suspect that that is how it has been garnered—to
frustrate a terrorist attack. Is that ethical or not? I realise
that these are difficult ethical areas, but I think it is a fair
question to ask.
David Miliband: It is a very fair
and important question to ask. The first part of it is that we
would never procure intelligence or procure evidence through torture
We would never say to another intelligence agency, "Please
get us information about X," and abandon our legal and ethical
commitments in respect of how they find that. that. Secondly,
I think that you are quoting from the 2005 ISC report on the handling
of detainees by UK intelligence personnel in Afghanistan, Guantanamo
Bay and Iraq.
Mr. Pope: Yes.
David Miliband: There is an important
part where Jack Straw was giving evidence to the Committee. He
said that you never get an intelligence officer who says, "Here
is the intelligence, and by the way, we conducted this under torture."
He said, "One of the things that is done with intelligence
that comes from liaison partners, obviously an assessment is made
about its provenance. Because it does not follow that if it is
extracted under torture, it is automatically untrue. But there
is a much higher probability of it being embellished." He
went on, and I think he expressed it quite well: "There is
a real area of moral hazard which is that if you do get a bit
of information which seems to be completely credible, which may
have been extracted through unacceptable practices, do you ignore
it?" That is exactly the question that you are approaching.
The assessment therefore comes in terms of whether or not there
is a threat to life. In successive FCO human rights reports, we
have referred to the significance of a threat to life, and therefore
being part of a balanced judgment about whether or not a piece
of intelligence can be used if one has concerns about its provenance.
That does not mean, however, that it could ever be used as evidence
in court.
Q134 Mr. Pope: I am interested
by the ethical difference between "procure" and "use",
but I take your point. These are difficult areas. If we—the
UK Government—use this kind of information, not in a court
of law but in a practical way, do you think that that would be
a breach of our obligations under the UN convention against torture,
or the Human Rights Act?
David Miliband: We always seek
to act within our legal commitments. I am not a lawyer and I am
nervous about giving a legal answer.[2]
Q135 Mr. Pope: I am not a lawyer
either, but I am nervous that if we do not "procure",
but do "use" information obtained from another nation,
which we have reason to believe has been obtained using mistreatment
or torture, that will be a breach of our international obligations.
I am not an international lawyer, but I see that there are causes
for concern.
David Miliband: I would say in
return that we are known as a country for the way in which we
zealously pursue our commitments, which includes campaigning for
changes in the practices of other countries. That is an important
part of the balance sheet.
Q136 Chairman: Under international
law, do we not have an obligation to act positively and to report
instances of suspected torture?
David Miliband: Report to whom?
Q137 Chairman: Well, generally,
in terms of the UN convention against torture or the Human Rights
Act. Do we not have an obligation to draw attention to instances
where we know or suspect that torture has been used?
David Miliband: I query the word,
"report". If you asked whether we have a responsibility
to act, I would say that yes, we do have a responsibility to act.
We have to act by exposing what is happening, confronting those
who are doing it, and seeking to have it changed. I am not sure
what you mean by "report".
Chairman: I mean "announce"
or "speak out".
David Miliband: One of the points
that I hope we will come on to is the FCO human rights report,
which documents where we find out our information on countries
that are doing things that violate standards or legal norms. Then
we report them—that is why I asked the question about who
we report them to.
Simon Manley: We have also responded
to that point in our reply to the Joint Committee on Human Rights,
which asked us a similar question.
Chairman: No doubt you could follow that
up in writing if necessary.
Q138 Mr. Purchase: Let us move
away from the philosophy seminar and the shadow boxing to the
practical reality. Should information be received—albeit
through torture, which we understand is unreliable, and albeit
that we may want to do something about it later—that suggested
that some danger was imminent to the British people, can you reassure
us, and the British people in particular, that you would act on
it?
David Miliband: Yes.
Mr. Purchase: Thank you.
Q139 Mr. Keetch: Let me ask you
two other questions to which you can give the same one word answer,
"Yes", should you wish.
David Miliband: I have used my
quota I think.
2 Ev 50. Back
| 
