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GOVERNMENT RESPONSE TO THE

INTELLIGENCE AND SECURITY COMMITTEE’S

REPORT ON RENDITION

 

The Government is grateful to the Intelligence and Security Committee for its

comprehensive and wide-ranging Report, which draws on the Committee’s extensive

access to the work of the intelligence and security Agencies on this topic. The Report

contains a number of conclusions and recommendations. These are reproduced

below (in

bold

), followed immediately by the Government’s response.

 

The Government welcomes the Committee’s recognition of the importance of the

UK’s international intelligence relationships, particularly with the United States, in

countering the threat to the UK from international terrorism, and the recognition

that these relationships must continue. Many of the terrorist threats to the UK have

international connections which can only be dealt with effectively in cooperation

with the intelligence and security agencies of other States.

The Government also welcomes the Committee’s related conclusion (Q) that, to

maintain the security of the UK, the Agencies need to share appropriately protected

intelligence on suspected extremists with foreign liaison services.

 

B. We are concerned that Government departments have had such difficulty in

establishing the facts from their own records in relation to requests to conduct

renditions through UK airspace. These are matters of fundamental liberties and

the Government should ensure that proper searchable records are kept.

 

The Government acknowledges that there were difficulties in accessing information

from files dating from the late 1990s and early 2000 on requests to conduct rendition

through UK airspace. These stemmed from the fact that rendition was not the

high-profile issue then that it has since become.

 

Further, it was not always clear

on which Government department’s records such information would have been

held. The Foreign and Commonwealth Office (FCO) now has the clear lead on

rendition policy, and there are established points of contact within other relevant

Whitehall departments.

 

C. Prior to 9/11, assistance to the U.S. “Rendition to Justice” programme – whether

through the provision of intelligence or approval to use UK airspace – was agreed

on the basis that the Americans gave assurances regarding humane treatment

and that detainees would be afforded a fair trial. These actions were appropriate

and appear to us to have complied with our domestic law and the UK’s

international obligations.

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D. Those operations detailed above, involving UK Agencies’ knowledge or

involvement, are “Renditions to Justice”, “Military Renditions” and “Renditions

to Detention”. They are not “Extraordinary Renditions”, which we define as “the

extra-judicial transfer of persons from one jurisdiction or State to another, for

the purposes of detention and interrogation outside the normal legal system,

where there is a real risk of torture or cruel, inhuman or degrading treatmentCIDT ed..

We note that in some of the cases we refer to, there are allegations of

mistreatment, including whilst individuals were detained at Guantánamo Bay,

although we have not found evidence that such mistreatment was foreseen by the

Agencies. The Committee has therefore found no evidence that the UK Agencies

were complicit in any “Extraordinary Rendition” operations.

 

E. In the immediate aftermath of the 9/11 attacks, the UK Agencies were authorised

to assist U.S. “Rendition to Justice” operations in Afghanistan. This involved

assistance to the CIA to capture “unlawful combatants” in Afghanistan.

These operations were approved on the basis that detainees would be treated humanely

and be afforded a fair trial.

 

In the event, the intelligence necessary to put these

authorisations into effect could not be obtained and the operations did not

proceed. The Committee has concluded that the Agencies acted properly.

 

The Government welcomes these important conclusions, which corroborate the

Government’s assurances on this matter. Whether any particular rendition is lawful

depends on the facts of each individual case. Where we are requested to assist

another State and our assistance would be lawful, we decide whether or not to assist

taking into account all the circumstances.We would not assist in any case if it would

put us in breach of UK law or our international obligations, including under the UN

Convention Against Torture.

 

F. SIS was subsequently briefed on new powers which would enable U.S. authorities

to arrest and detain suspected terrorists worldwide. In November 2001, these

powers were confirmed by the Presidential Military Order. We understand that

SIS was sceptical about the supposed new powers, since at the time there was a

great deal of “tough talk” being used at many levels of the U.S. Administration,

and it was difficult to reach a definitive conclusion regarding the direction of U.S.

policy in this area. Nonetheless, the Committee concludes that SIS should have

appreciated the significance of these events and reported them to Ministers.

 

The Government notes the Committee’s conclusion. It is important to remember the

context, however: events were moving quickly, the settled direction of the U.S.

Government’s response to the 9/11 attacks was not clear, and the priority for the UK

and U.S. intelligence agencies was to identify and seek to prevent further attacks. SIS

did inform Ministers of exchanges with U.S. counterparts in November 2001.

 

G. The Security Service and SIS were also slow to detect the emerging pattern of

“Renditions to Detention” that occurred during 2002. The UK Agencies, when

sharing intelligence with the U.S. which might have resulted in the detention of an

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individual subject to the Presidential Military Order, should always have sought

assurances on detainee treatment.

 

The Government accepts that, with hindsight, an emerging pattern of renditions

during 2002 can be identified but notes that, as the Committee acknowledges

elsewhere in the Report (Conclusion U), at the time the Agencies’ priorities were

correctly focused on disrupting attacks rather than scrutinising U.S. policy.

Moreover, as the Committee has also recognised (Conclusions I and J), once the

potential risk of mistreatment arising from renditions became clear, SIS and the

Security Service routinely sought approval from Ministers and assurances from

foreign liaison services on humane treatment whenever there were real risks of

rendition operations arising from their actions. They also took steps to provide more

detailed guidance to staff.

 

H. The cases of Bisher al-Rawi and Jamil el-Banna and others during 2002

demonstrated that the U.S. was willing to conduct “Rendition to Detention”

operations anywhere in the world, including against those unconnected with the

conflict in Afghanistan. We note that the Agencies used greater caution in

working with the U.S., including withdrawing from some planned operations,

following these cases.

 

I. By mid-2003, following the case of Khaled Sheikh Mohammed] and suspicions

that the U.S. authorities were operating “black sites”, the Agencies had

appreciated the potential risk of renditions and possible mistreatment of

detainees. From this point, the Agencies correctly sought Ministerial approval

and assurances from foreign liaison services whenever there were real risks of

rendition operations resulting from their actions.

 

J. After April 2004 – following the revelations of mistreatment at the U.S. militaryoperated

prison at Abu Ghraib – the UK intelligence and security Agencies and

the Government were fully aware of the risk of mistreatment associated with any

operations that may result in U.S. custody of detainees. Assurances on humane

treatment were properly and routinely sought in operations that involved any risk

of rendition and/or U.S. custody.

 

The Government welcomes these conclusions, which the Government believes reflect

the fact that the intelligence and security Agencies responded appropriately as their

awareness grew of the potential risks arising from U.S. rendition operations.

 

K. The Committee has strong concerns, however, about a potential operation in

early 2005 which, had it gone ahead, might have resulted in the ***. The

operation was conditionally approved by Ministers, subject to assurances on

humane treatment and a time limit on detention. These were not obtained and so

the operation was dropped. ***

***

***.

3

The Government notes the Committee’s strong concerns. The operation in question

was the only viable option open to the Government to counter a terrorist threat. As

the Committee notes, it was approved subject to safeguards but was not pursued as

the Government was not satisfied that the necessary safeguards could be met.

 

L. We are satisfied that the UK intelligence and security Agencies had no

involvement in the capture or subsequent “Rendition to Detention” of Martin

Mubanga and that they acted properly.

 

The Government welcomes this conclusion.

 

M. There is a reasonable probability that intelligence passed to the Americans was

used in Binyam Mohamed al-Habashi’s subsequent interrogation. We cannot

confirm any part of al-Habashi’s account of his detention or mistreatment after his

transfer from Pakistan.

 

The Government notes the Committee’s comments. The Government has no

information to confirm al-Habashi’s account of his detention following his arrest

in Pakistan.

 

N. We agree with the Director General of the Security Service that, with hindsight,

it is regrettable that assurances regarding proper treatment of detainees were not

sought from the Americans in this case.

 

As the Committee notes in paragraph 106 of its Report, the fact that assurances were

not sought was understandable, given the lack of knowledge at that stage of the

possible consequences of U.S. custody of detainees. Assurances would be sought in

similar circumstances now.

 

O. Whilst this was not a rendition but a deportation, and the Security Service and

SIS were not in a strong position to impose conditions on it, we accept their view

that they should nevertheless have sought greater assurances that the individual

would be treated humanely.

 

The Government notes the Committee’s remarks concerning this operation,

which the Agencies themselves had already concluded should have been subject to

greater assurances.

 

P. Given el-Banna’s and al-Rawi’s backgrounds and associations, it was reasonable

to undertake a properly authorised covert search of the men’s luggage. The

decision to arrest the men was taken by the police on the basis of the suspicious

items they found and was not instigated by the Security Service.

 

The Government welcomes this conclusion. Searches of this type are authorised

under the procedures set out in the Intelligence Services Act and are subject to

review by the Intelligence Services Commissioner.

4

5

 

Q. The sharing of intelligence with foreign liaison services on suspected extremists

is routine. There was nothing exceptional in the Security Service notifying the

U.S. of the men’s arrest and setting out its assessment of them. The telegram was

correctly covered by a caveat prohibiting the U.S. authorities from taking action

on the basis of the information it contained.

 

The Government welcomes this finding. As the Committee has acknowledged in

Conclusion A, the routine sharing of intelligence with foreign liaison services is a

crucial part of the fight against terrorism.

 

R. In adding the caveat prohibiting action, the Security Service explicitly required

that no action (such as arrests) should be taken on the basis of the intelligence

contained in the telegrams. We have been told that the Security Service would

fully expect such a caveat to be honoured by the U.S. agencies – this is

fundamental to their intelligence-sharing relationship.

We accept that the Security Service did not intend the men to be arrested.

S. The Security Service and Foreign Office acted properly in seeking access to the

detained British nationals, asking questions as to their treatment and, when they

learnt of a possible rendition operation, protesting strongly.

 

The Government welcomes the Committee’s conclusion that the Security Service

and FCO acted appropriately.

 

T. We note that eventually the British nationals were released, but are concerned

that, contrary to the Vienna Convention on Consular Relations, access to the men

was initially denied.

 

The Government shares the concern of the Committee over the lack of

consular access.

 

U. This is the first case in which the U.S. agencies conducted a “Rendition to

Detention” of individuals entirely unrelated to the conflict in Afghanistan. Given

that there had been a gradual expansion of the rendition programme during 2002,

it could reasonably have been expected that the net would widen still further and

that greater care could have been taken. We do, however, note that Agency

priorities at the time were – rightly – focused on disrupting attacks rather than

scrutinising American policy. We also accept that the Agencies could not have

foreseen that the U.S. authorities would disregard the caveats placed on the

intelligence, given that they had honoured the caveat system for the past 20 years.

 

The Government notes the Committee’s comments.

 

V. This case shows a lack of regard, on the part of the U.S., for UK concerns.

Despite the Security Service prohibiting any action being taken as a result of its

intelligence, the U.S. nonetheless planned to render the men to Guantánamo Bay.

They then ignored the subsequent protests of both the Security Service and the

Government. This has serious implications for the working of the relationship

between the U.S. and UK intelligence and security agencies.

 

Despite our serious concerns over this case, the UK has a close, long-standing,

extensive and valuable intelligence relationship with the U.S. As the Committee has

commented elsewhere (Conclusion Z), the Agencies have adapted their procedures

to work round problems and maintain the exchange of intelligence that is so critical

to UK security.

 

W. Whilst we note that Bisher al-Rawi has now been released from Guantánamo Bay

and that el-Banna has been cleared for release, we nevertheless recommend that

the UK Government ensures that the details of suspicious items found during the

Gatwick luggage search (including the police’s final assessment of these items)

are clarified with the U.S. authorities.

 

We will draw the U.S. Administration’s attention to this conclusion. The

Government believes that the information referred to is already available to the U.S.

As the Committee notes, al-Rawi has now been released from Guantánamo Bay and

el-Banna has been designated as eligible for transfer.

 

X. We recognise the contribution of the Foreign and Commonwealth Office in

securing Bisher al-Rawi’s release. However, having seen the full facts of the

case – and leaving aside the exact nature of al-Rawi’s relationship with the

Security Service – we consider that the Security Service should have informed

Ministers about the case at the time, and are concerned that it took *** years,

and a court case, to bring it to their attention.

 

The Security Service accepts, with hindsight, that it should have notified Ministers

more quickly. It has reviewed and revised its procedures to ensure that, if there were

to be similar cases in the future, Ministers would be informed in a timely manner.

 

Y. What the rendition programme has shown is that in what it refers to as “the war

on terror” the U.S. will take whatever action it deems necessary, within U.S. law,

to protect its national security from those it considers to pose a serious threat.

Although the U.S. may take note of UK protests and concerns, this does not

appear materially to affect its strategy on rendition.

 

Since before September 2001, we have worked closely with the U.S. on a wide range

of counter-terrorism issues to achieve our shared goal of combating terrorism.

The UK has had continued dialogue with the U.S. on detainee-related issues,

including rendition.

 

In response to a letter from the then Foreign Secretary, Condoleezza Rice, the

U.S. Secretary of State, made a statement on 5 December 2005 in which she stated:

“The United States has respected – and will continue to respect – the sovereignty of

other countries. The United States does not transport, and has not transported,

detainees from one country to another for the purposes of interrogation using

torture.” Dr Rice also confirmed that the U.S. respects the rules of international law,

6

7

 

including the UN Convention Against Torture, that the U.S. does not authorise or

condone the torture of detainees, and that torture and conspiracy to commit torture

are crimes under U.S. law wherever they may occur in the world.

In addition, the U.S. Detainee Treatment Act, enacted on 30 December 2005,

provides that no individual in the custody or under the physical control of the

U.S. Government, regardless of nationality, shall be subject to cruel, inhuman or

degrading treatment or punishment. This legislation makes a matter of statute what

President Bush had made clear was already U.S. Government policy.

 

Z. It is to the credit of our Agencies that they have now managed to adapt their

procedures to work round these problems and maintain the exchange of

intelligence that is so critical to UK security.

 

The Government agrees.

 

AA. The Committee notes that the UK Agencies now have a policy in place to

minimise the risk of their actions inadvertently leading to renditions, torture or

cruel, inhuman or degrading treatment (CIDT). Where it is known that the

consequences of dealing with a foreign liaison service will include torture or

CIDT, the operation will not be authorised.

 

BB. In the cases we have reviewed, the Agencies have taken action consistent with the

policy of minimising the risks of torture or CIDT (and therefore “Extraordinary

Rendition”) based upon their knowledge and awareness of the CIA rendition

programme at that time.

 

The Government welcomes these important conclusions, which underline the fact

that, as the Committee reflects in paragraph 46 of its Report, the UK’s intelligence

and security Agencies will not assist or involve themselves in a rendition operation

where there are grounds to believe that the person being rendered would face a real

risk of torture or CIDT.

 

CC. Where, despite the use of caveats and assurances, there remains a real possibility

that the actions of the Agencies will result in torture or mistreatment, we note that

the current procedure requires that approval is sought from senior management

or Ministers. We recommend that Ministerial approval should be sought in all

such cases.

 

The Government accepts that, where the Agencies consider that counter-terrorist

work with foreign services raises a real possibility that torture or mistreatment

could occur, they should consult Ministers before proceeding. In practice this

already happens.

 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

DD. The Committee considers that “secret detention”, without legal or other

representation, is of itself mistreatment. Where there is a real possibility of

“Rendition to Detention” to a secret facility, even if it would be for a limited

time, then approval must never be given.

 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

The Government notes the Committee’s view. The UK opposes any form of

deprivation of liberty that amounts to placing a detained person outside the

protection of the law.

As we have pointed out in response to Conclusions C to E, when we are requested

to assist another State in a rendition operation, and our assistance would be lawful,

we would decide whether or not to assist taking into account all the circumstances.

We would not assist in any case if to do so would put us in breach of UK law or our

international obligations, including under the UN Convention Against Torture.

 

EE. GCHQ has played no role in any U.S. renditions, whether “ordinary” or

“extraordinary”. Theoretically, given the close working relationship between

GCHQ and the National Security Agency (NSA), GCHQ intelligence could

have been passed from the NSA to the CIA and could have been used in a U.S.

rendition operation. However, GCHQ’s legal safeguards and the requirement for

explicit permission to take action based on their intelligence provide a high level

of confidence that their material has not been used for such operations.

 

The Government welcomes this conclusion.

 

FF. The use of UK airspace and airports by CIA-operated aircraft is not in doubt.

There have been many allegations related to these flights but there have been no

allegations, and we have seen no evidence, that suggest that any of these CIA

flights have transferred detainees through UK airspace (other than two

“Rendition to Justice” cases in 1998 which were approved by the UK Government

following U.S. requests).

GG. It is alleged that, on up to four occasions since 9/11, aircraft that had previously

conducted a rendition operation overseas transited UK airspace during their

return journeys (without detainees on board). The Committee has not seen any

evidence that might contradict the police assessment that there is no evidential

basis on which a criminal inquiry into these flights could be launched.

JJ. The alleged use of military airfields in the UK by rendition flights has been

investigated in response to our questions to the Prime Minister. We are satisfied

that there is no evidence that U.S. rendition flights have used UK airspace (except

the two cases in 1998 referred to earlier in this Report) and that there is no

evidence of them having landed at UK military airfields.

 

The Government welcomes these clear conclusions, which support the Government’s

repeated assurance that there is no evidence to suggest that renditions have been

conducted through the UK without our permission, or in contravention of our

obligations under domestic and international law. The conclusions support our

clearly stated position that we have not approved, and will not approve, a policy of

facilitating the transfer of individuals through the UK to places where there are

substantial grounds to believe they would face a real risk of torture.

8

 

HH. We consider that it would be unreasonable and impractical to check whether

every aircraft transiting UK airspace might have been, at some point in the past,

and without UK knowledge, involved in a possibly unlawful operation. We are

satisfied that, where there is sufficient evidence of unlawful activity on board an

aircraft in UK airspace, be it a rendition operation or otherwise, this would be

investigated by the UK authorities.

 

The Government agrees that it is not possible to check every flight – instead an

intelligence-led approach is and must be employed. If individuals are reasonably

suspected of committing criminal offences, or if there are reasonable grounds to

suspect that aircraft are being used for unlawful purposes, then action can be taken.

The nature of that action would depend on the facts and circumstances of any case.

 

II. The system of flight plans and General Aviation Reports is outside the remit of

this inquiry, although we are concerned that it appears to be systemically flawed.

The Home Secretary has assured the Committee that the e-Borders and Border

Management Programme (being introduced from 2008) will address our concerns

relating to general aviation documentation and security risks. This would,

however, be a matter for the Transport and Home Affairs Select Committees to

review in greater depth, if they felt it merited it.

 

The Government notes the Committee’s comments regarding General Aviation

Reports (GARs), but also notes that GARs themselves are not the only means of

addressing the general aviation risk to the UK. The border agencies pursue a clear

intelligence-led and risk-based approach (i.e. attendance or assessment is not

contingent on a GAR being completed). This includes meeting known arrivals and

also unannounced visits to provide information on activities at particular locations.

The Border Management Programme, jointly directed by Home Office and Treasury

Ministers, has begun a thorough review of general aviation. Its initial focus is the

completion of a comprehensive threat and risk assessment, which will increase the

ability of the border agencies jointly to take effective action.

Given the number of general aviation flights through the UK, this risk-assessed

approach will remain the most effective way of policing such flights until the

introduction of the e-Borders programme, which will collect and analyse passenger

and crew data, provided by carriers (air, sea and rail), in respect of all journeys to

and from the UK in advance of their travel. This will ensure that all travel

information can be submitted through a common portal to a joint operations centre

that will be at the heart of the new e-Borders system.

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A. Our intelligence-sharing relationships, particularly with the United States, are

critical to providing the breadth and depth of intelligence coverage required to

counter the threat to the UK posed by global terrorism. These relationships have

saved lives and must continue.

 

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