Monday, December 7, 2009
Rt. Hon. Gordon Brown, MP
By e-mail and delivery
Re: “The Iraq Renditions Case” & the Honesty of the Government
Dear Prime Minister:
I am writing about a very troubling matter. It involves the honesty of your government. I do not like to accuse anyone of lying; it saddens me to have to say that Parliament has been misled in a number of ways, and recent events have only compounded the problem.
First, there was the crime: British officials were responsible for the rendition (kidnapping) of two men from Iraq to Bagram Air Force base in Afghanistan, where they have languished without due process ever since.
Second, there was the cover up: from February 2004 until February 2009 (five years), various statements were made that were untrue, denying the government’s role in rendition. While this particular case came across the desk of government ministers, the misstatements were not corrected.
Third, there was the ‘apology’ for the prior misstatements, made by John Hutton on February 26, 2009. Unfortunately, this statement was itself false in virtually every relevant respect.
Fourth, over the weekend, I have given both Mr Hutton and his successor, Bob Ainsworth, the opportunity to correct these errors. They have again failed to do so, further compounding the false allegations.
* * *
Let us begin with a question: When, during your tenure as an elected official, did it become acceptable for ministers to lie, or mislead parliament, and continue to serve?
I hardly need to tell you that it is important for ministers to tell the truth to parliament. However, it is worth remembering why this is even more important than being truthful in the regular course of life. Parliament can only make decisions concerning the future of the country if it has the proper information. When ministers mislead Parliament, then, MPs are not given the information that they need to make the very decisions for which they were elected.
This is reflected in the official guidance note for ministers, Questions of Procedure for Ministers (QPM), which was first published in May 1992. QPM came under scrutiny in the 1990s as part of the background to the Scott Inquiry and, following consideration by the Treasury and Civil Service Committee, was amended in 1995 to include the obligation not to knowingly mislead Parliament:
Ministers must not knowingly mislead Parliament and the public and should correct any inadvertent errors at the earliest opportunity. They must be as open as possible with Parliament and the public.1
QPM was revised and reissued as The Ministerial Code in 1997. The Ministerial Code has been described as “the rule book for ministerial conduct, including the responsibilities of Ministers to Parliament”2 . In its first edition, the foreword from the new Prime Minister Tony Blair stated: “I will expect all Ministers to work within the letter and spirit of the Code.”3
The 1997 Code provides that:
1(iii) It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent errors at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister. 4
This provision has been included unaltered in all successive Ministerial Codes since 1997, most recently in 2007.5
On 19 March 1997 the House agreed a resolution on ministerial accountability on the following terms:
i. Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their Department and Next Steps Agencies;
ii. It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.
iii. Ministers should be as open as possible with Parliament, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with relevant statute and the Government's Code of Practice on Access to Government Information (Second Edition, January 1997);
iv. Similarly, Ministers should require civil servants who give evidence before Parliamentary Committees on their behalf and under their directions to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code (January 1996). 6
Both the Ministerial Code and the 1997 House Resolution on Ministerial Accountability clearly state that the operative act involves “misleading” rather than “lying to” parliament. The result of a misleading statement often the same as an outright lie. Half the truth is often the equivalent to none at all, as is the repeated failure to answer questions directly, or the persistent and intentional use of ambiguous language likely to be misinterpreted by a reasonable listener.
Both the Ministerial Code and the 1997 House Resolution on Ministerial Accountability clearly state that when Ministers knowingly mislead parliament, they must resign.
Examples of this are legion. Most famous in recent history, perhaps, is the case of John Profumo, who was Secretary of State for War when he resigned after lying to Parliament about an affair in 1963. More recently, on December 22, 1998, Geoffrey Robinson resigned as Paymaster General after intentionally misleading Parliament over the home loan affair.7 Misleading statements that might fall short of lying have often caused resignation as well. For example, on 1 April 2004, then-Immigration Minister Beverley Hughes resigned after admitting she "unwittingly" misled people about a suspected visa scam. Ms Hughes said she had not set out to "intentionally mislead anyone", but she could not "in conscience continue to serve as immigration minister".
Indeed, ministers have resigned for the lesser offence of failing to reveal something significant. Peter Mandelson resigned twice as Secretary of State – first from the Department of Trade and Industry and later the Northern Ireland Office. Mr Mandelson resigned in December 1998 following the disclosure that he accepted a £373,000 home loan from the then Paymaster General Geoffrey Robinson. Mr Mandelson returned to the Cabinet as Northern Ireland Secretary in 1999 but resigned a second time in 2001 after being accused of helping one of the Hinduja brothers obtain a British passport in return for a £1 million donation to Labour Party funds.
Giving false statements to parliament may result in sanctions that are far greater than simple resignation, including criminal prosecution. The Ministerial Code declares that:
1.2 The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law including international law treaties and obligations and to uphold the administration of justice and to protect the integrity of public life.8
Jonathan Aitken’s case involved first misleading Parliament and abusing his position as a minister in relation to gifts received from the Saudi royal family, and then defending his position by lying to the Guardian newspaper. Ultimately, Aitken perjured himself in Court rather than admit his lies, and – disgraced - was sentenced to eighteen months in prison for perjury.
* * *
It is against this history that we must consider the current controversy which we will refer to as the Iraq Renditions case. I will not review the facts, save to say that two men originally detained by the British were indisputably rendered, with the full knowledge of British officials. It is also now indisputable that at least one must be innocent of the charge that he was a member of Lashkar e Tayyiba (LeT), since he is Shia, and the group is Sunni. It is indisputable that members of the government have misled parliament. Unfortunately, to date, it is equally indisputable that they have done nothing meaningful to correct those falsehoods.
Rendition (ie. kidnapping) is, as we all know, illegal. It is defined as the involuntary transportation of a person from one place to another, without the benefit of legal process.
For a long time, the British government denied any involvement in rendition. For example, 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.'9
This was false, and known to be false by the British government. The Iraqi Renditions case took place with full British knowledge and complicity in February 2004 – a full 22 months earlier.
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.10 This is, as previously stated, the equivalent of lying under the parliamentary rules.
Indeed, it is notable that on 7 December 2005, Prime Minister Tony Blair did just this, responding 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.11 Additionally, 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.’
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.’12
It should be noted that references to the Iraq Renditions case were included in papers that went to the then Foreign Secretary Jack Straw and Home Secretary Charles Clarke in April 2006. No corrections were forthcoming for almost three years.
All of this took place before John Hutton’s “apology.”
* * *
On February 26, 2009, John Hutton, then Secretary of State for Defence, made a statement to the House concerning two men “captured” by the British in Iraq, both of whom were then rendered to Afghanistan. The statement was a correction of, and seemingly intended as an apology for, these prior denials.
The day after Mr Hutton’s statement, then, I wrote asking your government to identify the names of the two men, so that my charity Reprieve – acting pro bono as we always do – 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, or at least a fair trial on legitimate charges.
When I received a reply three months later, the Ministry of Defence (by then the responsibility of Bob Ainsworth) took the position that they would not reveal the prisoners’ names, based in part upon the risible notion that it would violate their rights under the Data Protection Act. Indeed, far from trying to right this wrong, your Government has resisted the efforts we have made to date to do it ourselves.
I (and perhaps others) found it deeply disturbing that your government could purport to apologize for our country’s involvement in this wrongdoing, and yet refuse to assist to put matters right.
* * *
However, then the case took a major turn. Identifying the men would have been simple if your government had behaved in a moral fashion. It was much more complicated and expensive for us, as our investigation spanned three continents. It now appears that Mr Hutton’s statement to the House was not only obfuscatory, but was factually incorrect on key points. I am now writing to request that you ensure that Britain exerts the greatest possible influence to correct this patent wrong. You should also consider what steps you should take to seek to regain the trust of parliament and the people, after the false statements that have been repeatedly made.
We have now identified one of the men as Amanatullah Ali. We have 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.
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 “Salahudin”. Significantly, he was brought up in the Gulf states (where the primary language is Arabic), he has not been able to contact his family or even reassure them that he is alive, and we are informed that he has suffered so much in British and US custody that he is held for most of the time in the mental health cells in Bagram.
Turning to Mr Hutton’s parliamentary statement, he said on behalf of your government that he had worked for almost three months in order to “bring a full account to Parliament.” He made four salient assertions of fact. I feel sure you would be mortified that one of your Cabinet officers misled the House at all; the evidence we have gathered indicates that Mr Hutton’s statement to the House was misleading on all four assertions.
First, Mr Hutton 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 you described them 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 Pakistan 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.
His 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.
We should tread carefully prior to placing the imprimatur of government on the purported guilt of those held beyond the rule of law, particularly given the US record in this regard. In Guantánamo – which is relatively open compared to Bagram -- we have proven 31 of 39 men innocent where they have finally got to federal court (a shocking 79.5% rate of acquittal). One would be much more likely to get the answer right if one simply tossed a coin, rather than relying on official assertions that a prisoner in secret detention is guilty of a crime.
Second, Mr Hutton stated 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.”
The evidence suggests that this was a pretext. “Salahudin” is, according to our best information, fluent in Arabic – at least when his mental illness allows him to form a coherent sentence at all. Arabic is also the primary language of Iraq. Thus, the US clearly has the right “linguistic” resources to talk to him.
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, and therefore simply wanted to hold them somewhere else.
The US certainly had alternatives if they wanted to remove the prisoners from Iraq. One option would have been Guantánamo Bay. While there are, apparently, very few Pakistanis in Bagram, there have been at least 67 held in Guantánamo Bay. The problem with Guantánamo Bay, from the US perspective, is that the rule of law now extends there. The total absence of due process is likely to be the real reason for their rendition to Bagram.
Third, Mr Hutton stated 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 the beneficiaries of all the process that was their due, and we could all rest assured that their detention was appropriate.
There are various problems with Mr Hutton’s statement. To begin with, there is no such term in law as an “unlawful enemy combatant”. This is a term originally coined by the Bush Administration in order to hold prisoners beyond the rule of law in Guantánamo Bay. If a prisoner violates the laws of war, he is subject to prosecution for a war crime – as best illustrated by the Nuremburg Tribunals. He is not, however, to be deprived of the benefits of the Geneva Conventions prior to conviction.
Additionally, it is simply false to imply that their designation and periodic review in Bagram satisfies even minimal due process concerns. None of the foreign prisoners in US custody in Bagram has thus far been allowed to see a lawyer. Mr Hutton made his statement in February 2009, seven months before the Obama Administration released the new, and marginally improved, guidelines for the “Detainee Review Board” (DRB) system for assessing prisoners in Bagram. Yet even today, after the new DRB regulations, the rights of prisoners in Bagram fall well below those of prisoners in Guantánamo.
The US Supreme Court has, on no fewer than three occasions (Rasul in 2004, Hamdan in 2006 and Boumediene in 2008), condemned the Guantánamo procedures as legally inadequate. It thus seems beyond dispute that the legal regime in Bagram fails to satisfy minimum legal standards.
Fourth, Mr Hutton stated 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 worked 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. If the Americans have recognized his religious faith, then they possess strong evidence that he is not a member of LeT, and should have freed 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.
While Mr Amanatullah has had access to the ICRC, the ICRC has advised his family not to question him about his treatment, conditions at Bagram or the allegations against him, because such communications will be censored. The ICRC has also felt bound, under the terms of their engagement, not to fulfill prisoners’ requests to secure legal assistance.
While “Salahudin” has been seen by the ICRC, 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.
* * *
I wrote to Mr Hutton and Mr Ainsworth on Friday, giving them an opportunity to correct the earlier misstatements. While I have not heard direct from either, both have made public statements.
Mr Hutton had previously admitted that the act of rendition was wrong. However, he told one of the Sunday newspapers: “I have no reason to doubt the advice I was given.” Mail on Sunday, at 18 (December 6, 2009). But of course he has reason to doubt this ‘advice’ – we now know that Mr Amanatullah could not have been a member of LeT. How can your government take the position that the Data Protection Act prevents disclosure of Mr Amanatullah’s name while your government continues to assert falsely in public that Mr Amanatullah is a member of a terrorist organization? Presumably you would agree that such statements are defamation, pure and simple?
The Ministry of Defence issued the following statement on Friday evening:
The operation referred to by John Hutton in his February statement was directly related to threats to security and stability in Iraq. The individuals detained in this operation were members of Lashkar e Tayyiba and were a significant threat to the lives of Iraqi civilians and to coalition forces. Their initial detention was appropriate, legitimate and targeted at saving lives.
This is again false. Mr Amanatullah patently is not a member of LeT – that is not simply misleading, it is a lie. Mr Amanatullah patently was no threat to the lives of Iraqi civilians and to coalition forces – he was on a pilgrimage. His initial detention was not legitimate. And his rendition and continued detention without trial is a crime.
* * *
The Labour Government has had five Secretaries of State for Defence since these two men were abducted and rendered to another country against their will. I will copy all five men with this letter; someone should correct me if I am wrong when I suggest that nobody has done anything meaningful to investigate this matter, let alone to correct it.
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.
You are ultimately responsible for the crime – and it is a crime – that has been committed against these men. Resolving their plight is urgent. I am surely stating the obvious when I say that nothing short of total cooperation from your government in securing justice for them will be satisfactory.
I hope to hear from you at your earliest convenience.
Yours sincerely,
Clive A. Stafford Smith, Director
Endnotes
1 First set out in Roger Freeman's speech, HC Deb 2 November 1995 vol 265 cc456-7. He stated that the new version 'becomes effective immediately.'
2 HC235 2000-2001 para 15.
3 Cabinet Office, Ministeral code: A Code of Conduct and Guidance for Ministers, Dep 3/5263 HC 313_111 1995-6 q 1055. See text of current para 1.5 at http://www.cabinetoffice.gov.uk/propriety_and_ethics/ministers/ministerial_code/page1.asp
4 Cabinet Office, Ministerial code: A Code of Conduct and Guidance for Ministers, 1997. See text of 1997 document at http://www.cabinetoffice.gov.uk/media/cabinetoffice/propriety_and_ethics/assests/ministerial_code_1997.pdf
5 Cabinet Office, Ministerial Code: A Code of Conduct and Guidance Procedures for Ministers, Dep 3/5263 HC 313_111 1995-6 Q1055. See text of current Code at http://www.cabinetoffice.gov.uk/propriety_and_ethics/ministers/ministerial_code/page1.asp
6 House of Commons Hansard Debates for 19 Mar 1997: Column 1046-1047, found at http://www.parliament.the-stationery-office.co.uk/pa/cm199697/cmhansrd/vo970319/debtext/70319-67.htm
7 Blair's Cabinet Casulaities, The Mail, Sunday 6 December 2009, http://www.dailymail.co.uk/news/article-180401/Blairs-Cabinet-casualties.html#ixzz0Ys88biDJ.
8 Cabinet Office, Ministerial Code: ACode of Conduct and Guidance Procedures for Ministers, Dep 3/5263 HC 313_111 1995-6 q1055. See text of current Code at 1.2; http://www.cabinetoffice.gov.uk/propriety_and_ethics/ministers/ministerial_code/page1.asp
9 Rt Hon Jack Straw, Uncorrected Transcript of Oral Evidence, House of Commons Minutes of Evidence Taken Before Foreign Affairs Committee, Evidence Heard in Public Questions 1-90, Tuesday 13 December 2005; found at http://www.publications.parliament.uk/pa/cm200506/cmselect/cmfaff/uc768-i/uc76802.htm
10 Blair Told to dodge Rendition Flights Questions, Mail Online, 19 January 2006, http://www.dailymail.co.uk/news/article-374553/Blair-told-dodge-rendition-flight-questions.html
11 Rendition: Blair in Quotes, from Prime Ministers Question Time, 7 December 2005, BBC transcript found at: http://news.bbc.co.uk/1/hi/uk_politics/4627360.stm
12 Rt Hon Jack Straw MP, Uncorrected Transcript of Oral Evidence, House of Commons Minutes of Evidence Taken before Foreign Affairs Committee, Evidence heard in Public Questions 187-262, Wednesday 15 March 2006; found at http://www.publications.parliament.uk/pa/cm200506/cmselect/cmfaff/uc573-iv/uc57302.htm
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