You are here: Parliament home page > Parliamentary business > Publications and Records > Committee Publications > All Select Committee Publications > Commons Select Committees > Foreign Affairs > Foreign Affairs

OT 289: Letter to the Chairman from Andrew Tyrie MP: Diego Garcia

 

I am writing in response to your Committee's Report on the Overseas Territories published on 6 July 2008 and, in particular, your intention "to examine further the extent of UK supervision of US activities on Diego Garcia, including all flights and ships serviced from Diego Garcia". I strongly agree with your Committee that it is "deplorable" that the US Administration failed to tell the truth on this issue[1].

 

I would be grateful if you would now consider holding a short inquiry into the involvement of Diego Garcia in the US rendition programme. This would give the public confidence that the various allegations that have been made about Diego Garcia are being properly investigated.

 

I have attached a note on the legal regime that is applicable to Diego Garcia. This is relevant to the two rendition flights and further allegations that have been made surrounding Diego Garcia's role in renditions. I hope that it is useful. I have attempted to set out specific passages of the Exchanges of Notes and other relevant documents, and international law, which may also be relevant to your examination of UK supervision of US activities on Diego Garcia.

 

Also attached is information disclosed to me following a number of Freedom of Information Act requests I made earlier this year, and my original requests. Some of the information refers specifically to questions asked by your Committee, including assurances regarding the use of Diego Garcia's territorial waters. The information shows that on seven separate occasions the US provided inaccurate assurances on Diego Garcia. It also shows that the first such assurance was in June 2003, just nine months after the second rendition flight had refuelled on Diego Garcia.

 

Please let me know if I can be of further assistance on this issue. I am placing this letter in the public domain.

 

 

1 October 2008

 

 

Note to the Foreign Affairs Committee on the Legal Framework Applicable to the use of Diego Garcia in the US Rendition Programme

 

This note has been prepared in conjunction with lawyers who are advising me on extraordinary rendition. It has as its focus the two confirmed rendition flights through Diego Garcia. However, further allegations were made on 31 July 2008, by BBC's Newsnight[2] and in Time Magazine[3], that Diego Garcia was used by the US authorities to carry out interrogations.

 

 

Introduction

 

1. In his letter to your Committee of 18 March 2008, the Foreign Secretary attached an Annex entitled 'Extent of UK Supervision', which made it clear that UK law was supplemented by BIOT ordinances on Diego Garcia. It is clearly crucial to establish precisely what system of law is applicable in BIOT. To this end, the All Party Parliamentary Group on Extraordinary Rendition is seeking to obtain all relevant BIOT ordinances from the FCO Legal Library. Once they have been disclosed, I will forward them to your Committee.

 

2. In relation to the two rendition flights through Diego Garcia, it is of concern that neither Government has accepted that they were wrong or unlawful in themselves. The US and the UK merely refer to information on renditions and Diego Garcia as supplied in good faith, being inaccurate[4]. In May 2008 the UK Government simply stated that "[o]ur officials continue to work with their US counterparts on the details and implications of the new information passed to us on 15 February regarding two cases of rendition through Diego Garcia in 2002[5]". In a recent letter to me, the Foreign Secretary wrote: "I have written to Secretary Rice to clarify a number of specific points regarding these renditions[6]". It is now over six months since the two flights through Diego Garcia were announced by the Foreign Secretary, yet very little information about these flights has been revealed by either government. More details of these flights, as set out in my letter to you of 27 February 2008, are needed before definitive pronouncements on their legality can be made.

 

3. It seems clear that the US believes the flights in themselves were not in breach of any agreements with the UK. In a Daily Briefing on 21 February 2008, Sean McCormack, a State Department Spokesman answered questions on this issue:

 

MR. MCCORMACK: As it stands now, it is UK territory. Now, there was an exchange of diplomatic notes in 1966 and 1976. The 1976 exchange of notes between the U.S. and the UK states, "Ships and aircraft owned or operated by or on behalf of either government may freely use the anchorage and the airfield." So, I'm not going to try to parse those words, but I think a layman's understanding of it is each government has equal right to use, as they will, for the purposes of their government aircraft or ships, either of those facilities, either the anchorages or the airstrip. So that's my full explanation as to the status.

 

QUESTION: So there was not some agreement subsequent to that that says that in terms of renditions or in terms -

 

MR. MCCORMACK: Okay, well, that I can get into. Now, this is specifically with respect to Diego Garcia and use of the airstrip. Now, Foreign Secretary Miliband in his statement, and you can go back and check the wording of this, outlined certain understandings with respect to renditions and the use of UK territory and airspace, including overseas territories. We're in full agreement, this is an accurate description of the understanding between the U.S. and the UK with respect to the use of UK territory airspace and overseas holdings vis-à-vis renditions. So that is an accurate reflection of our common understanding...

 

QUESTION: All right. Understanding that - was that understanding in place in 2002?

 

MR. MCCORMACK: No.

 

QUESTION: It was not?

 

MR. MCCORMACK: No. It evolved subsequent to that...

 

QUESTION: Okay. So when you say that you regret what happened in these - and when you express regret, you are not expressing regret that somehow, the understanding was violated at the time of the flights in question?

 

MR. MCCORMACK: No, no, no.

 

QUESTION: Rather you are expressing - I just want to make sure I'm right. You are expressing regret that when the Brits asked if this had ever happened, you were - what, through this administrative error, gave them the wrong answer?

 

MR. MCCORMACK: Correct. The latter is correct. Thanks for asking. I thought I was clear earlier this morning[7].

 

 

4. It is important to establish whether the US breached the agreements or understandings in place by using Diego Garcia to refuel the two rendition flights. If it did not, then the agreements in place between the US and the UK may need to be reformulated, consistent with the UK's domestic and international legal obligations, to prevent rendition flights happening again. If it did, then it is important to determine how the agreements were breached, and the implications of such a breach. Your Committee may wish to examine the agreements and understandings in place, as set out by the Foreign Secretary in his letter to you of 18 March 2008. I have attempted to highlight some relevant aspects of the agreements on Diego Garcia here.

 

 

Extent of UK Supervision

 

5. In his letter to you of 18 March 2008 the Foreign Secretary attached a note on the extent of UK supervision of Diego Garcia. It states: "[a]ny extraordinary use of the US base or facilities, such as combat operations or any other politically sensitive activity, requires prior approval from Her Majesty's Government and would attract a greater level of involvement by UK personnel both on Diego Garcia and in the UK". It would seem clear that the rendition of a detainee should properly be classified as a 'politically sensitive activity'. Therefore, such a rendition would require prior approval from the UK Government. If this was not sought then it would appear that the US has breached its obligations in this respect.

 

6. On the other hand, if permission to conduct either of the rendition flights was sought then there should have been a 'greater level of involvement by UK personnel'. If UK personnel exercised this greater level of involvement by authorising or assisting either of the rendition flights in any way, then the individuals concerned may be criminally liable for their actions.[8] Your Committee could examine this issue in more detail.

 

 

Exchange of Notes 1966

 

7. The Foreign Secretary also attached the Exchange of Notes 1966. Paragraph (2)(b) sets out that both Governments would have to approve the construction of any facility on Diego Garcia. This is relevant to the allegations made by Reprieve[9] and others, that detainees may have been held on Diego Garcia; and the Council of Europe, which set out that Diego Garcia may have been used in the "processing" of high value detainees[10]. These allegations contradict Government assertions that "[t]here is no US facility for foreign detainees on Diego Garcia. The only civilian detention centre is at the small UK-run police station".[11]

 

8. If any facilities in which detainees could be held have been built since 1966, the UK Government should have been consulted and approved of the construction. Your Committee could determine whether any such structures have been built since 1966, and if so, whether UK approval was given for such a structure.

 

9. Paragraph (6) sets out that "commercial aircraft shall not be authorised to use military airfields in the Territory". US aircraft linked to rendition flights have allegedly been registered as civil aircraft in the past. The Foreign Secretary has most recently described the two rendition flights through Diego Garcia as 'intelligence flights'[12]. Your Committee could enquire into whether the two rendition flights through Diego Garcia were, or presented themselves as being, commercial aircraft for the purposes of this agreement. If they were, or did, then the US has acted in breach of this provision unless the UK Government approved the use of the airfield by commercial aircraft.

 

 

Annex II: Jurisdiction and Claims

 

10. This Annex is crucial in determining whether US or BIOT law applies to the actions of US or UK officials on Diego Garcia. It is clear under paragraph 1(a)(ii) of Annex II that BIOT authorities have jurisdiction over members of the US Forces with respect to offences committed within the Territory and punishable by the law in force there.

 

11. US military authorities have the right to exercise exclusive jurisdiction over persons subject to the military law of the United States with respect to offences punishable by the law of the US, but not by the law in force in the Territory (paragraph 1(b)(i)). As such, any acts involved in the rendition process, outlawed by US military law but not by BIOT law, would be punishable exclusively by the US. As torture and kidnap are presumably crimes under BIOT law, this paragraph appears to have only limited application to the two rendition flights through Diego Garcia.

 

12. Paragraph 1(b)(ii) sets out that BIOT authorities have the right to exercise exclusive jurisdiction over members of the US Forces with respect to offences punishable by BIOT law but not by the law of the United States. This is particularly relevant in relation to extraordinary rendition. As your Committee has highlighted, the United States applies a different definition of torture than the United Kingdom. The following passage from a legal opinion on extraordinary rendition, prepared by Professor James Crawford[13], demonstrates the implications of this divergence:

 

Under UK law, using "waterboarding" to obtain information from a suspect would clearly constitute both torture and cruel, inhuman or degrading treatment. Lord Bingham, (with whose speech on the principal issues the rest of the members of the House agreed) expressed the view that various techniques detailed in the so-called "Torture Papers" would also fall within the definition of torture under UK law.[14]

 

13. Where jurisdiction is concurrent the US military authorities have primary right to exercise jurisdiction over US Forces for offences "arising out of any act or omission done in the performance of official duty", 1(c)(i)(bb). This would seem to cover any acts they may have done in relation to the two rendition flights. In the case of all other offences BIOT authorities have primary right to exercise jurisdiction, (paragraph 1(c)(ii)).

 

14. However, the US may be reluctant to exercise jurisdiction over US Forces or US officials for crimes committed while on Diego Garcia in the course of the two rendition flights. It is clear from the Annex that if the authority having primary right to exercise jurisdiction chooses not to exercise it they shall notify the other authorities. The US authorities shall also give "sympathetic consideration" to a request from BIOT authorities for a waiver of their primary right in cases where the authorities of BIOT consider such a waiver to be of particular importance, 1(c)(iii). Your Committee may wish to consider whether, in the event that criminal offences may have been committed on Diego Garcia which would fall under the United States' exclusive jurisdiction, it would be desirable for the UK Government to request a waiver of the United States' right.

 

 

Exchange of Notes 1976

 

15. As in paragraph (2)(b) of the Exchange of Notes 1966, the construction of buildings on Diego Garcia is addressed in this agreement. Under paragraph (1)(a) buildings on Diego Garcia may be constructed after consultation with the appropriate administrative authorities of the UK. A similar issue has been addressed above.

 

16. Paragraph (3) of the 1976 Exchange of Notes sets out that: "[a]s regards the use of the facility in normal circumstances, the Commanding Officer and the Officer in Charge of the [UK] Service element shall inform each other of intended movements of ships and aircraft. In other circumstances the use of the facility shall be a matter for the joint decision of the two Governments". If the UK was not informed of the movements of the two rendition flights, it appears that this agreement was breached. If this obligation does not extend to providing sufficient information to determine whether or not a specific flight is engaged in a rendition operation, then this aspect of the Exchange of Notes appears to be inadequate for the purposes of preventing renditions through UK territory.

 

17. Paragraph (4)(a) sets out that "[a]ccess [to Diego Garcia] shall not be granted to any other person without prior consultation between the appropriate administrative authorities of the two Governments". Your Committee may wish to consider whether, by bringing the two rendered detainees on to Diego Garcia, seemingly without the knowledge of the British Government, the US has breached the agreement.

 

18. The US State Department made reference to paragraph (4)(b) of the 1976 Exchange of Notes in the Daily Briefing set out above. This sets out that "Ships and aircraft owned or operated by or on behalf of either Government may freely use the anchorage and airfield". Your Committee may wish to consider whether, in the light of the two rendition flights through Diego Garcia and the continuing operation of the US extraordinary rendition programme, such a provision should be amended.

 

 

 

International Obligations

 

19. Whilst the BIOT domestic legality of the US activities on Diego Garcia remains unclear, the UK's international obligations are precise. It is improbable that the two rendition flights through Diego Garcia were consistent with the United Nations Convention Against Torture, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights. The UK is a signatory to all three.

 

i. First, it is significant that the UK is bound by a definition of torture which the US rejects - as outlined above.

 

ii. Second, on non-refoulement, the US has entered a reservation against the UN Convention Against Torture, stating that it does not understand the prohibition to apply, except where the possibility of torture is "more likely than not". Professor James Crawford has stated:

 

It is clear that the "more likely than not" standard adopted by the United States does not reflect the position under the Torture Convention itself, or the other treaties to which we have referred [the European Convention on Human Rights and the International Covenant on Civil and Political Rights]. Nor does it reflect the position of the UK government and courts, both of which have instead adopted a lower threshold for violations of the obligation not to send someone to a place where he may be tortured[15].

 

The UK threshold is that of a "real risk" of torture to the individual in the State to which they are rendered. In light of recent admissions; the information that is known about the treatment of detainees at Guantanamo Bay; and the US interpretation of the law on torture, there is a strong possibility that this obligation has been breached.

 

iii. Thirdly, the UK has a positive obligation to ensure that its territory is not used to send any person to a country where there is a real risk that he may be tortured. Again, it seems likely that the UK Government has breached this obligation.

 

20. The UK has a positive duty under Article 12 and 13 of the Convention Against Torture to investigate allegations by individuals that they have been tortured on any territory under its jurisdiction - some such allegations have now been made by Reprieve on behalf of such individuals. Moreover, there is also a broader duty to investigate "where a prima facie case exists that the Convention has been breached".[16] Your Committee may wish to consider these duties in undertaking its investigation into the extent of UK supervision of US activities on Diego Garcia.

 

Letter to the Secretary of State for Foreign and Commonwealth Affairs from Andrew Tyrie MP

 

 

I am writing to you in my role as Chairman of the All Party Parliamentary Group on Extraordinary Rendition, to make a number of information requests under the Freedom of Information Act.

 

I have listed these requests in order of priority. I realise that this will be a lot of work for officials in your Department, and am very happy to be contacted to clarify specific requests, or to discuss how best the information requested could be provided.

 

I am aware that the high number of these requests may result in the cost limit for applications under the Freedom of Information Act being exceeded. In this event, I would be grateful if you could deal with as many of my requests as possible within the applicable cost limit, and in accordance with the order of priority (set out below).

 

Your officials kindly indicated that they could contact me if the cost limit is exceeded, to inform me of this fact and to put in place arrangements for dealing with the remaining requests. I appreciate this offer.

 

 

Diego Garcia

 

1. The passenger lists of the aircraft with serial number N379P which landed at Diego Garcia on 13 September 2002[17]; the stated purpose of the flight; any permissions granted by the UK or sought by the US in relation to this flight; any other information provided by the US or requested by the UK in relation to this flight.

 

2. The specific passages of the minutes of the 2006 US/UK Political Military Talks held in London on 17 and 18 October in which assurances regarding the use of Diego Garcia in the US renditions programme were given and discussed[18].

 

3. The specific passages of the minutes of the 2005 US/UK Political Military Talks in which assurances regarding the use of Diego Garcia in the US renditions programme were given and discussed.

 

4. All assurances given by the US that "no detainees, prisoners of war or any other persons in this category are being held on Diego Garcia, or have at any time passed in transit through Diego Garcia or its territorial waters or airspace"[19], since 11 September 2001.

 

5. All agreements entered into between the US and the UK, or requests made by the US, for holding prisoners on, or transporting them through, the British Indian Ocean Territory, since 11 September 2001.

 

 

Bisher al-Rawi and Jamil el-Banna

 

6. The date on which the purpose of the modified battery charger, that was discovered during the detention of Bisher al-Rawi at Gatwick airport and noted in the telegrams of 1 November 2002 and 11 November[20], was first known.

 

7. All information relating to the decision to detain the group including Bisher al-Rawi and Jamil el-Banna at Gatwick airport on 1 November 2002.

 

8. All information relating to the threat to the security of Britain or any other nation posed by Bisher al-Rawi and Jamil el-Banna; the work allegedly carried out for the intelligence services by Bisher al-Rawi; and the location of Abu Qatada, between 11 September 2001 and 1 November 2002.

 

9. All information received from the Gambian authorities, including that received via the US authorities, regarding Bisher al-Rawi and Jamil el-Banna, between 1 November 2002 and 6 December 2002[21].

 

10. All records of communications between US and UK officials regarding the 'operation' cited in the Loose Minute of 6 November 2002, Subject: Baggage search of Abu ANAS[22], between 1 October 2002 and 6 November 2002.

 

11. All records of communications between US and UK officials regarding Bisher al-Rawi and Jamil el-Banna, between 8 November 2002 and 6 December 2002, including records of the telephone conversation of 8 November 2002[23], and records of the telephone conversation referred to in the 6 December 2002 telegram 'Islamists in Detention in the Gambia'[24].

 

12. All information relating to any visits made by UK officials to Bisher al-Rawi or Jamil el-Banna, the progress of the US investigation into Bisher al-Rawi and Jamil el-Banna's activities[25], and the intention of the US authorities to render Bisher al-Rawi and Jamil el-Banna to Bagram Airbase[26], between 1 November 2002 and 8 December 2002.

 

13. The 'matters' that enabled Jack Straw to approach the US authorities on Bisher al-Rawi's behalf[27].

 

 

Binyam Mohamed al-Habashi

 

14. All information relating to any visits by UK intelligence officers to British resident Binyam Mohamed al-Habashi while he was being held in Karachi in 2002.

 

15. All information passed between UK authorities and Moroccan authorities, during the detention of Binyam Mohamed al-Habashi in Morocco between 2002 and 2004.

 

 

US Interrogation Practices

 

16. All information received as a direct result of the US interrogation of Khalid Sheikh Mohammed, between March 2003 and 6 September 2006.

 

17. All information received as a direct result of the US interrogation of Abu Zubaydah, between March 2002 and 6 September 2006.

 

18. All information received as a direct result of the US interrogation of Abd al-Rahim al-Nashiri, between November 2002 and 6 September 2006.

 

19. All information received from US authorities concerning the so-called 'Heathrow airport plot' in February 2003, including the source of the information received, from March 2002 to February 2003[28].

 

20. All information received from US authorities concerning the so-called 'Chemical bomb plot' in April 2004, including the source of the information received, from April 2003 to April 2004[29].

 

21. All information received from US authorities concerning the so-called '2004 UK Urban Targets Plot' in mid-2004, including the source of the information received, from April 2003 to November 2004[30].

 

22. All information received from US authorities concerning the alleged foiled attack on Canary Wharf in November 2004, including the source of any information received, from November 2003 to November 2004[31].

 

 

I am placing this letter in the public domain.

 

 

20 May 2008

 

 

Letter to Andrew Tyrie MP from the Counter Terrorism Department, FCO

 

Thank you for your request for information, which we received on 23 May. I wrote to you on 23 June, 21 July and again on 18 August informing you that we had not yet reached a decision on where the public interest lay in respect of qualified exemptions engaged on your request and that this would take some further time.

 

Having considered the public interest in relation to your request, we are now in a position to provide you with a full response without exemptions. I will address the points from your letter in turn.

 

On request number 1 in your letter, I can confirm that the UK Government has sought information from the US Government in respect of the two flights through Diego Garcia in 2002, in which a US plane with a single detainee on board refuelled at the US facility on the island. The flight you ask about specifically in your letter (which may not be one of these two) was included on the list of flights that was passed to US officials on 15 May, based upon which we sought their specific assurance that none of the flights had been used for the rendition of an individual. The US confirmed that, with the exception of the two cases related to Diego Garcia in 2002, there have been no other instances in which US intelligence flights landed in the United Kingdom, our Overseas Territories, or the Crown Dependencies, with a detainee on board since 11 September 2001.

 

There are no flight records relating to Diego Garcia that are still held covering the date mentioned in your request and there is also no record of permission being granted by the UK or sought by the US on this specific flight.

 

On numbers 2, 3 and 4 the information to which you are entitled is included in the attached digest. A further assurance regarding rendition through Diego Garcia was included in the Foreign Secretary's oral statement to the House of 21 February and is therefore already in the public domain.

 

On number 5, there have been no agreements of this nature entered in to between the UK and US governments since 11 September 2001.

 

However, you may wish to know that the Exchanges of Notes between the UK Government and the US Government from 1967 and 1976 are relevant to the holding of prisoners on the island. I enclose copies for your reference. The 1966 Exchange of Notes sets out the respective jurisdiction of the UK and US in Diego Garcia. In respect of criminal jurisdiction, and consequently the holding of prisoners, you will see it sets out the means by which the UK authorities exercise normal powers over any criminal activities, and permits the US military on the island to exercise jurisdiction over their own servicemen.

 

I can confirm that the Foreign & Commonwealth Office does not hold any further information that falls within the scope of request number 5 in your letter.

 

The Foreign and Commonwealth Office may hold information falling within the description specified in requests numbered 6 to 22 in your letter. However, we estimate that to locate, retrieve and extract such information would take this request above the appropriate limit of £600 or 3.5 days. This limit has been specified in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. Section 12 of the Freedom of Information Act makes provisions for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit. We will not, therefore, be processing these questions further.

 

If you were to make a new request it may be that we could comply with that request within the appropriate limit. I have discussed this with Stuart McCracken, the co-ordinator of your Group, and I have explained that you may wish to submit the remaining requests as they stand and we will deal as many of them as possible within the appropriate limit, in the order of priority you have specified. You are entitled to submit these further questions once 60 days have elapsed from the date of this letter. I would be happy to discuss this further on the telephone if that would be helpful.

 

If you have any other queries about this letter, please contact me. Please remember to quote the reference number above in any future communications.

 

If you are unhappy with the service you have received in relation to your request and wish to make a complaint, or request a review of our decision you should write to me at the above address. You have 40 working days to do so.

 

If you are not content with the outcome of that internal review, you may apply directly to the Information Commissioner for a decision. Generally, the ICO cannot make a decision unless you have exhausted the complaint procedure provided by the Foreign and Commonwealth Office. The Information Commissioner can be contacted at:

 

The Information Commissioner's Office

Wycliffe House

Water Lane

Wilmslow

Cheshire

SK9 5AF

 

2 September 2008

FREEDOM OF INFORMATION REQUEST: ANDREW TYRIE ESQ, MP

 

Extract from the Minutes of the British Indian Ocean Territory US-UK Political-Military Talks 2003

Hawaii, 10-11 June 2003

 

[REDACTED] confirmed for the record that there had never been any detainees on Diego Garcia nor were any anti-personnel landmines stored on Diego Garcia.

 

 

Extract from an e-mail between an FCO Official in Washington and an FCO Official in London

21 November 2003

 

I spoke to [REDACTED] (Pol/Mil, State) on 21 November.

Detainees

I explained the contents of the letter from the Bar Human Rights Committee, and the press coverage. He said that he had no knowledge of any detainees being held on Diego Garcia. The policy remained that they "will not hold on Diego Garcia, or send through Diego Garcia, terrorist detainees or anybody of that nature".

 

 

Extract from a Telegram from the British Embassy in Washington to the FCO in London

18 May 2004

 

SUMMARY

 

1. State assure us (again) that the US have not, and will not hold, transit or transport detainees on or through Diego Garcia and its territorial waters.

 

DETAIL

 

2. We spoke to State ([REDACTED], International Security Office, Bureau of Political Military Affairs) on 17 May following the 16 May Sunday Express articles alleging that the US was holding detainees on Diego Garcia and "on board ships in the island's harbours". We passed State a copy of the Express articles.

 

3. State assured us, again, that the US have no (no) terrorist suspects on Diego Garcia or in Diego Garcia's territorial waters and have not (not) held terrorist suspects on Diego Garcia or in Diego Garcia's territorial waters. They have not (not) transited or transported terrorist suspects through Diego Garcia or Diego Garcia's territorial waters. The US would not (not) hold, transit or transport terrorist suspects on or through Diego Garcia or Diego Garcia's territorial waters without the permission of the UK Government.

 

 

Extract from the Minutes of the British Indian Ocean Territory US-UK Political-Military Talks 2004

London, 26-27 May 2004

 

U.S. repeated its assurance that there are not now and never have been any detainees held in or in transit through Diego Garcia or its territorial waters.

 

 

Extract from the Minutes of the British Indian Ocean Territory US-UK Political-Military Talks 2005

Washington, 7-8 September 2005

 

[REDACTED] reemphasized that the U.S. had not and would not use DGAR in any detainee operations.

 

...

 

GWOT Detainees

The U.S. repeated its assurance to the UK that there are not now nor have there been any GWOT detainees held in or in transported through DGAR or its territorial waters.

 

 

Extract from the Minutes of the British Indian Ocean Territory US-UK Political-Military Talks 2006

London, 17-18 October 2006

 

Detainees

 

5. In response to the UK's enquiry, [REDACTED] assured the UK on behalf of the US Government that at no time had there been any detainees, prisoners of war or any other persons of that sort on Diego Garcia, or who had transited through the territorial seas or airspace surrounding Diego Garcia.

 

Extract from the Minutes of the British Indian Ocean Territory US-UK Political-Military Talks 2007

Washington, 12-13 September 2007

 

The U.S. Government has, at no time, held on the island or transited through the territorial seas or airspace surrounding Diego Garcia any detainees, prisoners of war or any other persons of that nature or status1

 

...

 

1Although this is what was said at the time of the meeting, the issue has subsequently become subject to discussion


[1] Foreign Affairs Committee, Report on the Overseas Territories, 6 July 2008, para 70.

[2] BBC 2, Newsnight, broadcast 31 July 2008, http://news.bbc.co.uk/1/hi/programmes/newsnight/7536477.stm. See also Jose Maria Irujo, 'Un 'yihadista' en el limbo', El Pais, 18 May 2008, http://www.elpais.com/articulo/reportajes/yihadista/limbo/elpepusocdmg/20080518elpdmgrep_1/Tes?print=1.

[3] Adam Zagorin, "Source: British Territory Used for US Terror Interrogation", Time Magazine, 31 July 2008, http://www.time.com/time/world/article/0,8599,1828469,00.html.

[4] See CIA Director's Statement on the Past Use of Diego Garcia, https://www.cia.gov/news-information/press-releases-statements/past-use-of-diego-garcia.html; and the Foreign Secretary's Terrorist Suspects (Renditions) Statement, 21 February 2008, http://www.publications.parliament.uk/pa/cm200708/cmhansrd/cm080221/debtext/80221-0008.htm#08022198000007

[5] Dr Kim Howells MP, Written Answer to Harry Cohen MP, 7 May 2008.

[6] Rt Hon David Miliband MP, Letter to Andrew Tyrie MP, 5 June 2008.

[7] Daily Briefing, US State Department, 21 February 2008, http://www.state.gov/r/pa/prs/dpb/2008/feb/101214.htm

[8] s 134, Criminal Justice Act 1988.

[9] Reprieve, 'Enforced Disappearance, Illegal Interstate Transfer, and Other Human Rights Abuses Involving the UK Overseas Territories'.

[10] Council of Europe Committee on Legal Affairs and Human Rights, 'Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report', 7 June 2007, para 70.

[11] Meg Munn MP, Written Answer to Andrew Tyrie MP, 11 October 2007.

[12] David Miliband MP, Written Answer to Edward Davey MP, 15 September 2008.

[13] 'Opinion: Extraordinary rendition of terrorist suspects through the United Kingdom', Professor James Crawford and Kylie Evans, 9 December 2005, available at www.extraordinaryrendition.org, and provided to the Committee in earlier correspondence.

[14] A (FC) and others v. Secretary of State for the Home Department, [2005] UKHL 71, para 53 (Lord Bingham of Cornhill): "[S]ome of the Category II or III techniques detailed in a J2 memorandum dated 11 October 2002 addressed to the Commander, Joint Task Force 170 at Guantanamo Bay, Cuba, (see The Torture Papers: The Road to Abu Ghraib, ed K Greenberg and J Dratel, (2005), 227-8), would now be held to fall within the definition in article 1 of the Torture Convention.". The techniques referred to are as follows: Category II: the use of stress positions (like standing) for a maximum of four hours, the use of falsified documents or reports, use of the isolation facility for up to 30 days, interrogating the detainee in an environment other than the standard interrogation booth, deprivation of light and auditory stimuli, placing a hood over the detainees head, the use of 20 hour interrogations, removal of all comfort items (including religious items), switching the detainee from hot rations to MREs, removal of clothing, forced grooming and using individuals detainees individuals phobias to induce stress; Category III: the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family, exposure to cold weather or water (with appropriate medical monitoring), use of a wet towel and dripping water to induce the misperception of suffocation, use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger and light pushing: Greenberg and Dratel (eds) The Torture Papers: The Road to Abu Ghraib, (CUP, 2005) 227-8.

[15] 'Opinion: Extraordinary rendition of terrorist suspects through the United Kingdom'.

[16] 'Opinion: Extraordinary rendition of terrorist suspects through the United Kingdom'.

[17] Source: Flight logs obtained by Reprieve.

[18] Source: Written Answer 26 October 2006, http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061026/text/61026w0014.htm#0610272000007.

[19] Sources: Written Answer 26 October 2006, http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo061026/text/61026w0014.htm#0610272000007; Written Answer 11 October 2007, http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm071011/text/71011w0006.htm#07101133000060.

[20] Source: Intelligence and Security Committee Report into Rendition, July 2007, para 118; Intelligence and Security Committee Report into Rendition, July 2007, para 130.

[21] Source: Out-Telegram to US authorities dated 4 November 2002, 'Travellers to Gambia', referred to in the Intelligence and Security Committee Report into Rendition, July 2007, paras 120 & 121.

[22] Source: Loose Minute dated 6 November 2002, 'Baggage search of Abu ANAS; 1 November 2002'.

[23] Source: Out-Telegram to US authorities dated 8 November 2002, 'Individuals Travelling to Gambia', referred to in the Intelligence and Security Committee Report into Rendition, July 2007, para 126.

[24] Source: Out-Telegram to US authorities dated 6 December 2002, 'Islamists in Detention in the Gambia', referred to in the Intelligence and Security Committee Report into Rendition, July 2007, para 135.

[25] Source: Intelligence and Security Committee Report into Rendition, July 2007, para 131.

[26] Source: Intelligence and Security Committee Report into Rendition, July 2007, para 132.

[27] Source: Intelligence and Security Committee Report into Rendition, July 2007, para 143 & 147.

[28] Office of the Director of National Intelligence, 'Summary of the High Value Terrorist Detainee Program', 6 September 2006, available at http://www.dni.gov/announcements/content/TheHighValueDetaineeProgram.pdf; BBC News, 'Blair authorised terror alert troops', 17 February 2003, http://news.bbc.co.uk/1/hi/uk/2747677.stm.

[29] BBC News, 'Chemical 'bomb plot' in UK foiled', 6 April 2004, http://news.bbc.co.uk/1/hi/uk/3603961.stm.

[30] Office of the Director of National Intelligence, 'Summary of the High Value Terrorist Detainee Program', 6 September 2006.

[31] Independent on Sunday, 'Focus: The tower at Canary Wharf. Was it the target of an al-Qa'ida plot or a cynical exercise in fear-mongering?', 28 November 2004, http://www.independent.co.uk/news/uk/crime/focus-the-tower-at-canary-wharf-was-it-the-target-of-an-alqaida-plot-or-a-cynical-exercise-in-fearmongering-534851.html.