Reprieve's investigation reveals the identity of one man, Amanatullah Ali, and damning evidence that the British government misled parliament and the public.
After years of government denials that the UK had been involved in any rendition operations, in February 2009 then-Secretary of State for Defence John Hutton announced to parliament that UK forces had captured two men in Iraq in February 2004, and handed them to US forces. In subsequent statements to parliament, the government revealed that in March 2004, British officials had become aware of the US intention to transfer the men from Iraq to Afghanistan.
The British government admitted its complicity in a crime (kidnapping, otherwise called rendition), admitted it was wrong, and appeared to apologize. Yet the government will not identify the men, which would be most basic act that the government could do in order to reunite the men with their legal rights.
Indeed, the British government has apparently taken no step over the past five years to ensure that they receive legal assistance.
The day after Mr Hutton's statement to the House, Reprieve wrote to the Defence Secretary, asking him to identify the two men so that Reprieve lawyers – acting pro bono as always – could help make up for the regrettable involvement by the British government in this crime by acting for the men and their families and seek to secure their release.
Despite the clear urgency of the situation, it took the UK government three months to reply. The Ministry of Defence wrote that they would not reveal the prisoners’ names, taking the position that doing so would violate the prisoners's rights under the Data Protection Act.
It is deeply disturbing that the MoD could apologize for our country’s involvement in this wrongdoing, and yet refuse to assist to put matters right. Reprieve therefore embarked on an investigation.
1) Britain's Iraq renditions and the legal consequences
2) How Defence Secretary Hutton misled Parliament
3) How the UK violated the MoU governing transfer of prisoners
4) Why Mr Amanatullah urgently needs a lawyer
5) Why Bagram Internment Facility makes us all less safe
6) Further questions and timeline of events
1) Britain's Iraq renditions and the legal consequences
Our complicated and expensive search for the identity of the men has covered three continents over six months. It now appears that the MoD statement to the House was factually incorrect on key points.
Reprieve has now identified one of the men as Amanatullah Ali, and interviewed his family in a small village in the Pakistani Punjab. In his limited, and censored communications with his family he has told them that he was detained by the British, rather than the Americans; he has asked them to pray for his safe return, and to get him help. Amanatullah Ali is a fluent Arabic speaker.
We have not been able to positively identify the second man, although our interviews with other released Bagram prisoners have gleaned some facts about him. He is apparently known as “Salahuddin”. Significantly, he was brought up in the Gulf states (where the primary language is Arabic). "Salahuddin" has not been able to contact his family or even reassure them that he is alive. Reprieve has been told by multiple sources that as a result of his abuse in UK and US custody, "Salahuddin" is in catastrophic mental and physical shape, and now spends most of his time in the mental health cells at Bagram.
Our claim is that the men must be formally identified, along with any information that could help us find their family members, so that we can seek a next friend authorization. This issue is now moot with respect to one of the men, but not the other.
Furthermore, because the UK has been mixed up in the wrong-doing, our claim is that the UK is legally obliged to help us fight their case. This issue is very much alive for both men.
Because we can already prove that one man (Amanatullah) is a Shia, the notion that he was a member of Lashkar-e-Taiba (LeT) becomes effectively impossible – as LeT is a Sunni extremist group that would view a Shia as an apostate.
Thus, it becomes important for the UK to help us to understand how he could have been misidentified as LeT. Meanwhile, the men are apparently held in Bagram Air Force Base, where the regime is considerably worse than even in Guantánamo Bay.
2) How Defence Secretary Hutton misled Parliament
In his parliamentary statement of 26 February 2009, then-Defence Secretary John Hutton stated that the MoD had worked for almost three months in order to “bring a full account to Parliament.” He made four salient assertions of fact. The evidence we have gathered indicates that the statement was misleading on all four.
First, the Secretary stated that “[t]he individuals transferred to Afghanistan are members of Lashkar e Tayyiba [LeT], a proscribed organisation with links to al-Qaeda.” Some might consider it ironic that the government now relies on the Data Protection Act to keep secret the names of the prisoners, but nobody thought to raise the DPA when Mr Hutton described them - as it turns out at least in one case, falsely - as members of an extremist Muslim group (infamous for its involvement in the Mumbai bombing last year).
In fact, Mr Amanatullah is a Shia rice merchant, whose family owns a small landholding in the Pakistani Punjab. LeT is a Sunni extremist group that views all Shia as heretics, and that is currently conducting a violent campaign in the Punjab to dispossess Shia landholders such as Mr Amanatullah. It is inconceivable that Mr Amanatullah could be a member of LeT. Amanatullah's family report that far from being a terrorist, Mr Amanatullah crossed from Iran (where he was negotiating the sale of rice) into Iraq in February 2004 to do what many Shia Muslims long to do – to visit the shrines of the faith during the holy month of Muharram.
The British government should know to tread carefully before placing its imprimatur on what appears to be a technically impossible allegation against Mr Amanatullah. In this way, the UK government continues to support Mr Amanatullah's indefinite detention in a prison where he is unable to effectively challenge these allegations, however absurd they may seem. Guantánamo – which is relatively open compared to Bagram -- once prisoners were allowed access to lawyers to assist them in challenging their detention, the aquittal rate was almost 80%. This means that one would be much more likely to get the answer right by simply tossed a coin, rather than relying on any official US assertions that a prisoner in secret detention is guilty of a crime.
Second, the Secretary of state claimed that “[t]he US Government has explained to us that they [the prisoners] were moved to Afghanistan because of a lack of relevant linguists necessary to interrogate them effectively in Iraq.”
All the evidence suggests that this was, at best, a pretext. “Salahuddin” is, according to our best information, fluent in Arabic. Since Arabic is the primary language of Iraq, the US clearly had adequate “linguistic” resources to interrogate him in Iraq.
It is far more likely that, because the two men were not Iraqi the US felt no obligation to turn them over to the Iraqi authorities. They rendered them to Afghanistan because they wanted to continue to hold them.
The US certainly had alternatives to Bagram Airforce Base if they wanted to remove the prisoners from Iraq. One option would have been Guantánamo Bay, where at least 67 other Pakistanis have been held. The problem with Guantánamo Bay, from the US perspective, is that the rule of law now extends there. This is likely to be the real reason for the rendition to Bagram.
Third, the Secretary of State said that “[t]he US has categorised them as unlawful enemy combatants, and continues to review their status on a regular basis.” By this, he presumably intended to assure Parliament that the two men were being given some form of due process, and that the conditions of their imprisonment were appropriate.
But the term “unlawful enemy combatant” was coined by the Bush Administration to justify holding prisoners beyond the rule of law in Guantánamo Bay. In truth, if a prisoner violates the laws of war, he should be prosecuted for a war crime – best illustrated by the Nuremburg Tribunals. This does not mean that prisoners can be detained indefinitely, or deprived of the rights enshrined in the Geneva Conventions prior to conviction.
Additionally, even in light of the "new regime" at Bagram - under which a detainee may have a “status review” before a “Detainee Review Board” (DRB) - it is false to imply that prisoners at Bagram are being held in accordance with the Geneva Conventions, or indeed any recognised legal standards. Under the new Bagram rules, prisoners are not allowed to seek the assistance of a lawyer, they may not be told of all the evidence against them, or given the opportunity to gather evidence to help in their defence. There is no requirement on the DRB to evaluate whether evidence has been obtained through torture. These procedural protections therefore fall well short of even the bare minimum required by the Geneva Convention Relative to the Treatment of Prisoners of War, or any other legal regime.
Ironically, under Obama's new Bagram guidelines - the “Detainee Review Board” (DRB) system - prisoners in Bagram have far less rights than those held under the old Guantanamo regime. The US Supreme Court has held on three occasions (Rasul in 2004, Hamdan in 2006 and Boumediene in 2008), that the Guantánamo procedures are inadequate by any standards. It is therefore beyond dispute that the legal regime in Bagram fails to satisfy minimum legal requirements.
Fourth, the Secretary of State declared that “the detainees are held in a humane, safe and secure environment meeting international standards which are consistent with cultural and religious norms and the ICRC has had regular access to the detainees.”
If the Americans have not even managed to work out that Mr Amanatullah is a Shia, it is implausible to suggest that his treatment is consistent with “religious norms” – since Shia norms are very different from Sunni norms. And if the Americans have recognized his religious faith, then they possess strong evidence of his innocence of being a member of LeT, and should free him. All these matters show the importance of securing independent legal representation for him.
“Salahudin”, on the other hand, has apparently suffered a mental breakdown from his mistreatment.
Mr Amanatullah has had access to the ICRC, but because such communications will be censored by the US, the ICRC has advised Amanatullah's family not to question him about his treatment, conditions at Bagram or the allegations against him. The ICRC has also felt bound under the terms of their engagement not to fulfill prisoners’ requests to secure legal assistance.
Whilst “Salahudin” has aparently met with the ICRC in Bagram, he has not been able to communicate at all with his family. Since all communications with the ICRC are maintained as secret, the ICRC has been of little use to him despite their best intentions.
3) Violating the Memorandum of Understanding
The transfer of the two men was governed by a Memorandum of Understanding (MOU) between the US and the UK, which was provided to us by the MOD on 20 October 2009. As Amanatullah and "Salahuddin" were detained by the UK and then handed to the US, the UK is the “Detaining Power” and the US is the “Accepting Power” under the MOU. The MOU contains, in particular, the following provisions:
“4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power.
5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.
6. The Detaining Power will retain full rights of access to any prisoners of war, civilian internees, and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.
9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power.
11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction.
13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement.”
This means that the UK can easily request that the US transfer Amanatullah and "Salahuddin" back to UK custody, and indeed given their knowledge of the illegal conditions at Bagram Airforce Base, they should have done this a long time ago.
Under the terms of this agreement, it is clear that the UK should be making strong and urgent representations on the men's behalf in relation to the conditions in which they are being held, and their due process rights.
4) Why Mr Amanatullah urgently needs a lawyer
The British government bears responsibility towards these men. Reprieve wishes to work with the government to right this wrong, and to ensure that Britain intervenes to assist in delivering justice.
These men have been held beyond the rule of law for more than five years now. We do not know much about “Salahudin”, but Mr Amanatullah has five children, including a small daughter who he has not seen since she was a few months old. The case is urgent.
Amanatullah’s family live in the village of Khurrianwala located just out side the city of Faisalabad, in the province of Punjab, Pakistan. The houses are made of bricks while significant portions are made of just mud as the residents are extremely poor.
Amanatullah had been working as a rice merchant since 2002, a business he started when his brother, Zulfiqar loaned him some money. He made frequent trips to Iran which is a major rice importing country because of a high level of consumption and a low level of domestic production.
In February 2004, Amanatullah made another business trip to Iran. Since he belongs to the Shia sect of Islam and it was the holy month of Muharram, Amanatullah decided to continue his journey west into Iraq for pilgrimage at what is considered to be one of the holiest shrines in Karbala. A visit to the holy shrines in Karbala and Najaf in Iraq is a dream for all practising Shia Muslims. In spite of the United States invasion of Iraq in 2003, Shia Muslims from all over the world, including Pakistan, continue to go to Iraq for their annual pilgrimage.
Amanatullah’s family never heard from him till a year later in 2005 when they received a letter through the ICRC. The family learnt that Amanatullah had been picked up by the British, shot in the foot and rendered to Bagram.
Through Amanatullah’s very limited contact with his family through the ICRC, he has asked them to engage a lawyer or NGO to help secure his release. He has told his brother that he is being held in Bagram because of his work as a merchant.
Amanatullah claims he is innocent and is anxious for a lawyer to represent him. Nobody in Amanatullah’s family was aware of an organization such as Reprieve that is helping prisoners who have been denied justice in the name of the “war on terror”.
Amanatullah’s wife does not work and it is very difficult for his brothers and parents to support her and their five children. They can only afford to engage a lawyer that is willing to work pro bono on Amanatullah’s case.
A former Bagram prisoner:
"The two brothers you are talking about were brought from Iraq to Afghanistan. Salahuddin was from a family prominent in the Arab world whose family originally came from Pakistan. He had been brought from Baghdad to Bagram in 2004. When I knew him in Bagram, he was in catastrophic physical and mental condition, and would often be put into a special cell reserved for people suffering serious mental health problems. Salah was not allowed any contact with his family."
Terry Waite, British victim of kidnap:
"The British government worked for my freedom when I was held captive for 1763 days, and I am glad and grateful for it. But if Amanatullah is as innocent as he seems to be, and if he has been held without any legal rights for more than 2000 days thanks to a mistake made by the British, then it would seem that the moral obligation on the British government has an even greater obligation to help right that wrong."
5) Why Bagram makes us all less safe
The unclassified version of General Stanley McCrystal’s initial assessment of the Afghan war supports Reprieve's theory that Bagram Theater Internment Camp (BTIF) is a knife in the back of British (and American) troops who are sent to fight in the region, and that providing due process to prisoners in BTIF would make soldiers safer.
General McCrystal recognizes that BTIF is inevitably now being viewed as Guantánamo’s Evil Twin. While he obviously does not use that language, he states as follows:
With the drawdown in Iraq and the closing of Guantánamo Bay, the focus on U.S. detention operations will turn to the U.S. Bagram Theater Internment Facility (BTIF). Because of the classification level of the BTIF and the lack of public transparency, the Afghan people see U.S. detention operations as secretive and lacking in due process. .
- Appendix F, at 1
McCrystal suggests that the corrections policy is an unparalleled recruiting sergeant for the forces arrayed against the US and the UK:
The U.S. came to Afghanistan vowing to deny these same enemies safe haven in 2001. They have gone from inaccessible mountain hideouts to recruiting and indoctrinating … in the open, in the ACS [Afghan Correctional System]. There are more insurgents per square foot in corrections facilities than anywhere else in Afghanistan. Unchecked, Taliban/Al Qaeda leaders patiently coordinate and plan, unconcerned with interference from prison personnel or the military.
-Appendix F, at 1.
While General McCrystal does not elaborate on some of the causes, he does level strong criticism as the BTIF process:
Within the US Bagram Theater Internment Facility (BTIF), due to lack of capacity and capability, productive interrogations and detainee collection have been reduced. As a result, hundreds are held without charge or without a defined way ahead. This allows the enemy to radicalize them far beyond their pre-capture orientation. This problem can no longer be ignored.
-Appendix F, at 1.
He advises that the US immediately set up a process to get out of the corrections business, that all interrogations be overseen by a new body, and that there be an emphasis on the rule of law before all other things:
These sound corrections management techniques … and Rule of Law principles, application to all detention facilities, include: adherence to international humanitarian law; due process; vocational and technical training; de-radicalization; rehabilitation; education; and classifying and segregating detainee populations….
-Appendix F, at 2.
6) Further questions and timeline of events
It can be seen from the below timeline that the two men vanished and remained off the radar between March and June 2004.This raises two important questions:
1) Were these men held in a CIA black site or secret military facility during these months? If so, they were likely tortured. What do the British know about this?
2) Do these men hold any clue to MI6’s recent decision to report one of their own to the police for suspected criminal acts related to illegal detention in the ‘war on terror’?
Timeline of events
Events and ministerial statements relating to the Iraq Renditions case:
i. In February 2004, Amanatullah Ali travelled from Pakistan to Iraq in the course of his rice-exporting trade, and to visit important Shia Pilgrimage sites.
ii. In February 2004, Aminatullah and an unidentified other prisoner (Prisoner B) were captured by UK forces in the vicinity of Baghdad.
iii. In February or March 2004, UK forces transferred Amanatullah Ali and Prisoner B to US custody.iv. British officials became aware of the US “intention to transfer” Amanatullah and Prisoner B from Iraq to Afghanistan in March 2004.v. Between 7 and 14 March 2004 the Boeing aircraft N313P – dubbed by Amnesty International as the “Guantanamo Bay Express”, made a circuit from Washington via Libya and Palma de Mallorca to stop over in Iraq. The aircraft left for Afghanistan a few hours later, before flying back to the US via Cyprus and Ireland.
vi. In March 2004, Amanatullah Ali and Prisoner B were moved to an unspecified prison in Afghanistan.vii. From March 2004 until January 2005, Amanatullah Ali and Prisoner B were held in an unspecified US secret prison – most likely a “Black Site” – in Afghanistan.viii. British officials had confirmed by mid-June 2004 that Amanatullah Ali and Prisoner B were in US custody in Afghanistan.
ix. In approximately January 2005 Amanatullah’s family received first a letter from him via the Red Cross, informing them that he was now being held by the US at Bagram Airforce Base, Afghanistan.
x. On 13 December 2005, then-Foreign Secretary Jack Straw told the Foreign Affairs Select Committee that, ‘Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States, and also let me say, we believe that Secretary Rice is lying, there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop, because we have not been, and so what on earth a judicial inquiry would start to do I have no idea. I do not think it would be justified. While we are on this point, Chairman, can I say this? Some of the reports which are given credibility, including one this morning on the Today programme, are in the realms of the fantastic.’
xi. A leaked home office memorandum to Prime-Minister Tony Blair of December 2005, advises him to “dodge” questions about the extent of UK involvement in US renditions.
xii. On 7 December 2005, Prime Minister Tony Blair responds to questions about the extent of UK involvement in US renditions by stating that he has known of the US rendition policy for many years, and accepts US assurances that it is conducted in accordance with international law.
xiii. On 22 December 2005, Prime Minister Tony Blair said at a press conference: ‘I have absolutely no evidence to suggest that anything illegal has been happening here at all, and I am not going to start ordering inquiries into this, that and the next thing, when I have got no evidence to show whether this is right or not. And I honestly, it is like all this stuff about camps in Europe or something, I don't know, I have never heard of such a thing, I can't tell you whether such a thing exists.’
xiv. On 15 March 2006, then-Foreign Secretary Jack Straw was asked by a member of the Foreign Affairs Select Committee: ‘do you have anything to add to your previous robust denials of Government involvement in view of that admission [that perhaps the British Government still has not released its full knowledge of rendition issues]?’ Mr. Straw replied: ‘No….I have said to the Committee before that we conducted the most thorough of searches through the records and I have given the Committee the evidence that I have. If further evidence comes to light, I will bring it before the Committee.’ xv. Brief references to this case were included in lengthy papers that went to the then Foreign Secretary Jack Straw and Home Secretary Charles Clarke in April 2006.
xvi. On 1 December 2008, Defence Secretary John Hutton “had become aware” of the capture and subsequent transfer of the two prisoners, and instructed officials to investigate the case.
xvii. On 26 February 2009, John Hutton revealed the results of the MOD investigation to Parliament, confirming publicly for the first time that the two prisoners had been captured by UK forces in Iraq in February 2004, handed to US custody and subsequently rendered to Afghanistan. Mr Hutton did not disclose the names of the men, but claimed that they were members of extremist Sunni group Lashkar-e-Tayyiba. Mr Hutton said that the reason for the prisoners’ transfer to Afghanistan was to do with “linguistic” capacity of US forces operating in Iraq. Mr Hutton acknowledged that the transfer, “should have been questioned at the time”.
xviii. On 29 February 2009, the British High Court upheld a government application for an injunction preventing ex-SAS Ben Griffin from making further disclosures about UK forces capturing and transferring prisoners to US custody in Iraq.
xix. On 2 March 2009, Reprieve wrote to Mr Hutton requesting disclosure of information regarding the detainees.xx. On 4 June 2009, the Ministry of Defence replied to Reprieve, refusing to provide information about the prisoners on the basis of the Data Prevention Act, and Freedom of Information Act.
xxi. From June to November 2009, Reprieve conducted an international investigation spanning three continents, with the aim of identifying the families of the two prisoners and offering them pro-bono assistance.
xxii. On 6 July 2009, Defence Secretary Bob Ainsworth refused to name the two detainees. xxiii. On 20 November 2009, a Reprieve investigator met with the family of one of the men - Aminatullah Ali - offering bro-bono assistance. Reprieve soon discovered that Aminatullah Ali is a Shia Muslim, which is a minority Muslim sect targeted by Lashkar-e-Tayyiba, the very group Mr Hutton claimed he was a member of. xxiv. Prisoner B remains unidentified and unrepresented.
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