What follows is the full and unexpurgated text of the Foreign Office memo relating to renditions through UK territory and airspace that was leaked to, and published by, the New Statesman last week - now in a usable format, the scanned PDF having been put through OCR software to generate a new text-based PDF.

I have added my own annotations to this post, in italics, together with the text of Jack Straw’s Ministerial Statement about this memo, given to the House of Commons on 20th Jan 2006.

For those of you who just want the memo without my own ramblings, you can download it in PDF format by clicking this link.

UPDATE: Tim at Bloggerheads has his usual excellent selection of links to various reports relating to this issue - well worth visiting.

MEMO BEGINS…

Dear Grace,

Detainees

Summary

1. An explanation of what is normally meant by “Rendition’1 and “Extraordinary Rendition”, though these are neither legal nor precise terms. Discussion also of their legality: Rendition could be legal in certain limited circumstances; Extraordinary Rendition is almost certainly illegal. Further advice, too on what we and the US mean when we talk of “torture” and “cruel, inhuman and degrading treatment” (CID). And to what extent knowledge of, or partial assistance in, these operations (e.g. permission to refuel) constitutes complicity?

2. Advice too on handling. We should try to avoid getting drawn on detail, at least until we have been able to complete the substantial research required to establish what has happened even since 1997; and to try to move the debate on in as front foot a way as we can, underlining ail the time the strong counter-terrorist rationale for close co-operation with the US, within our legal obligations. Armed with Rice’s statement and the Foreign Secretary’s response, we should try to situate the debate not on whether the US practices torture (and whether the UK is complicit in it): they have made clear they do not - but onto the strong US statements in Rice’s text on their commitment to domestic and international instruments. A debate on whether the US test for torture/CID derives from their commitments under the US Constitution rather than international law is better ground than the principle of whether they practice torture.

This is as it appears, a quick overview of the contents on the memo plus the author’s recommendations on the press line to take which amounts to dissemble, obfuscate and don’t get drawn into answering direct questions. The most interest comment is that which relates to shifting the debate on the definition of torture from that in international law to one based on what is permitted under the US Constitution, which, as is later noted, does permit treatment that has been ruled unlawful under international law.

Detail

3. You asked for further advice on substance and handling, following my letter of 5 December, including with a view to PMQs on 7 December.

Specifics:

What do we mean by “Rendition”?

4. This is not a legally defined term. But it is normally understood to mean the transfer of a person from one jurisdiction to another, outside the normal legal processes such as extradition, deportation, removal or exclusion. It does not necessarily carry any connotation of involvement in torture.

“Extraordinary Rendition�

5. The use of this term is even more varied. In its recent letters to Chief Constables and Ministers. Liberty has defined it as transfer from one third country to another. But it is normally used to connote the transfer of a person from one third country to another, in circumstances where there is a real risk (or even intention) that the individual will be subjected to torture or cruel, inhuman or degrading treatment (CID). Indefinite detention without legal process could be argued to constitute CID.

So what we have here is a explanation of plain old vanilla ‘rendition’ – a.k.a. extra-judicial transfers between states or, more commonly, kidnapping – and extraordinary rendition, which is rendition with added testicular electrodes. Interestingly, the memo notes that indefinite detention without legal process – as in Guantanamo - could be argued to constitute cruel, inhuman and degrading treatment, which is outlawed under the UN Convention Against Torture and, of course, the Geneva Convention.

Is Rendition lawful?

6. We need to look at the facts of each case. In certain circumstances, it could be legal, if the process complied with the domestic law of both countries involved, and their international obligations. Normally, these international obligations, e.g. under the International Covenant on Civil and Political Rights (ICCPR), would prevent an individual from being arbitrarily detained or expelled outside the normal legal process. Council of Europe countries would also be bound by the ECHR, which has similar obligations in this sense. Against this background, even a Rendition that does not involve the possibility of torture/CID would be difficult, and likely to be confined to those countries not signed up to e.g. the ICCPR.

7. Rendition could therefore be legal in certain tightly defined circumstances. Rice’s Statement claimed two such examples (the World Trade Centre bomber, Ramzi Yousef, and Carlos the Jackal). But such cases will be rare.

If having signing up to the UN Convention on Civil and Political Rights is an indicator that rendition is likely to be unlawful, then legal renditions will be extremely rare indeed.

The ‘certain tightly defined circumstances’ in which rendition may be legal are therefore much as one would expect and best characterised as circumstances in which those in which the US is able to operate in the cracks between the law

Could Rendition ever be legal in the UK?

8. This depends how we are using the term “rendition”. In most circumstances and in most uses of the term, it will not be legal, including if it contravenes the law of the state from which the individual is transferred. In some limited circumstances, eg where there is no extant extradition procedure between the UK and a third country, transfer without formal extradition might be legal.

This is pure legal sophistry. Britain, as a signatory to both UNCCPR and ECHR could not permit renditions to take place on its territory, irrespective as to whether the country to which the rendee is taken has an extradition treaty with the UK or not. As for people being rendered into the UK, against UNCCPR applies, so such an idea is only applicable in cases where renditions take place from a non-signatory state. Moreover, the matter of unlawful extraditions was settled long ago by the notorious 1981 case in which an attempt was made to ‘render’ Ronnie Biggs back to the UK from Brazil by way of Barbados, an attempt which ultimately failed allowing Biggs to return to Brazil

Is Extraordinary Rendition legal?

9. In the most common use of the term (i.e. involving real risk of torture), it could never be legal, because this is clearly prohibited Under the UN Convention Against Torture (CAT). But the CAT prohibition on transfer applies to torture only, not to CID. (This may explain the emphasis on torture in Rice’s statement.)

10. The US government does not use the term “Extraordinary Rendition” at all. They say that, if they are transferring an individual to a country where they believe he is likely to be tortured, they get the necessary assurances from the host government (cf Rice’s Statement: “The US has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the US seeks assurances that transferred persons will not be tortured”). (Comment: We would not want to cast doubt on the principle of such government-to-government assurances, not least given our own attempts to secure these from countries to which we wish to deport their nationals suspected of involvement in terrorism: Algeria etc).

So the ‘assurances’ that Rice talked of in denying that the US are rendering captives to states which practice torture are no more substantive that those we are seeking or have already obtained, with countries that are known to practice torture such as Algeria and Libya.

The comment here (point 10) is extremely revealing and amounts to nothing more than ‘keep your mouth shut and say nothing, it might screw things up for us as well’.

What about the US reservation and “understandings” with respect to the CAT?

11. The US reservation to the CAT stales that the US considers itself bound (Article 16) to prevent CID only insofar as this means the CID prohibited by the US Constitution, but not as defined in international instruments such as the ICCPR. So, for example, the US would not (logically enough) consider themselves bound by the ECHR findings in relation to UK practice in Northern Ireland in the 1970s which ruled that five types of treatment did constitute CID (eg sleep deprivation, constant exposure to loud noise).

This is all very straightforward. The US does not use torture, at least not by its own definition of the term which applies a much lower standard to the term than is acknowledged in either international law or under ECHR. It’s human rights, Jim, but not quite as we know it

12. An “understanding” stated by the US spells out what it understands by mental pain or suffering in the definition of torture. It is not clear whether in practice this gives the US scope to use techniques which would otherwise constitute torture.

Again this is simple to understand. We know what the American’s say they are allowed do, we’re just not sure if its torture or not. Implicit in this statement is, of course, the line about it being best not to ask too many questions

Would cooperating with a US Rendition operation be illegal?

13. If the US were to act contrary to its international obligations, then co-operation with such an act would also be illegal if we knew of the circumstances. This would be the case, for example, in any cooperation over an Extraordinary Rendition without human rights assurances. Conversely, cooperation with a “legal” Rendition, that met the domestic law of both of the main countries involved, and was consistent with their international obligations, would be legal. Where we have no knowledge of illegality but allegations are brought to our attention, we ought to make reasonable enquiries.

Note the magic words at the end of the first sentence – cooperation with a US rendition operation would be unlawful if we knew about it. In other words “what we don’t know won’t hurt us�. I particularly like the last sentence, which suggests that we ‘ought’ to make ‘reasonable enquiries’ about allegations that the UK may have, however, inadvertently cooperated in illegal renditions.

And what are ‘reasonable inquiries’? A proper investigation? Somehow, I doubt it. I may be cynical but I get the distinct feeling that the kind of reasonable enquiries the memo is alluding too are unlikely to be much more than a quick call to the US Ambassador to ask if he’s sure that the US have not been naughty boys

How do we know whether those our Armed Forces have helped to capture in Iraq or Afghanistan have subsequently been sent to interrogation centres?

14. Cabinet Office is researching this with MOD. But we understand the basic answer is that we have no mechanism for establishing this, though we would not ourselves question such detainees while they were in such facilities.

trans: We capture them. We hand them over to the US and then we don’t ask any further questions, because what we don’t know can’t hurt us

What happened in 1998?

15. The Security Service have so far identified two cases:

i) An individual, Mohammed Rashed Daoud AL-OWHALI, was suspected of involvement in bombing the US Embassy in Nairobi. The US asked on 24 August 1998 for assistance with his return from Kenya to the USA for trial. This was originally via Prestwick, but later changed to Stansted because of the flight range of the aircraft. The request was originally for Al-Owhali and one other, who in the event did not travel. The request was agreed by the Home Secretary, Jack Straw.

ii) A similar request the same year was turned down, because the individual concerned was to be transported to Egypt (not yet clear what, if anything, the US said about assurances).

This is rather more interesting, not in the widely reported sense – this being the information that contradicts Jack Straw’s initial assurances about renditions –but in the sense of the second case, where the US were specifically asking for permission to render a captive to Egypt.

Egypt is, of course, amongst the list of countries with which the UK is seeking to obtain a Memorandum of Understanding in order to permit people to be deported to the country even in the face of concerns that they may be subject to torture on being returned.

16. From the information we have at the moment, we are not sure in either case whether the individual’s transfer from the country in which he was detained was extra-legal.

17. The papers we have unearthed so far suggest there could be more such cases. The Home Office, who lead, are urgently examining their files, as are we. But we now cannot say that we have received no such requests for the use of UK territory or air space for “Extraordinary Rendition”. It does remain true that “we are not aware of the use of UK territory or air space for the purposes of “Extraordinary Rendition”". But we think we should now try to move the debate on from the specifics of rendition, extraordinary or otherwise, and focus people instead on the Rice’s clear assurance that ail US activities are consistent with their domestic and international obligations and never include the use of torture.

This is the ‘killer’ section. Remember the accepted definition of ‘extraordinary rendition’ is ‘taking people away to be tortured’. So it is that here the memo’s author is now saying that we – meaning Jack Straw – cannot say that there have been no requests by the US for our complicity in taking people away to be tortured, but because we turned down their request in the case where this was obvious going to happen, as they were shipping their captive off to Egypt, we can say that we are not aware that our territory or airspace has been used in this way.

And how can we be sure? Because no one has ever bothered to ask or investigate such matters properly. Notice in point 16, what is being said is even where permission was give to render a suspect through UK airspace, including a landing on UK territory at Stansted Airport, we have no idea at all whether the rendition itself was legal or not

Handling

18. As far as possible, we should stick to the terms of the Foreign Secretary’s Statement in response to Rice’s, and his letter to EU Foreign Ministers covering her reply. We should also try to bring out the other side of the balance, in terms of the huge challenge which the threat of terrorism poses to all countries, and the need to balance the rights of the suspected terrorist against those of his potential victims.

19. More broadly, we should try to move the debate on from concentrating on whether the US practice torture, which they have clearly said they do not, and try to focus on the US’s constructive reassurance that, in all respects, they have acted in a way consistent with their domestic and international legal obligations, and with the sovereignty of those countries with which they have been working.

20. I am copying this letter to Nige! Sheinwald and Margaret Aldred (Cabinet Office), Ian Forber (MOD), Emma Churchill (Home Office), (Thames House), (Vauxhall Cross), and Sir David Manning (Washington).

(Irfan Siddiq) Private Secretary

Ms Grace Cassy 10 Downing Street

What I want you to do know is read and digest points 18 and 19…

…and now read below, Jack Straw’s Written Ministerial Statement to the House of Commons on 20th January 2006, where he addresses the matter of this particular memo

FOREIGN AND COMMONWEALTH AFFAIRS

Rendition Allegations (Inquiries)

The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw):

Some media reports over the last 48 hours, based on a leaked Government document, have suggested that the Government may be aware that there have been cases of “extraordinary rendition” through UK territory or airspace about which it has not informed Parliament.

This is not the case. I have given Parliament clear answers, updated as information has become available to me. The following chronology makes this clear:

7 December: the leaked document was sent by my office to the Prime Minister’s Office, setting out our understanding at that time.

12 December: after continuing searches of official records over the following few days, my written answer to the right hon. Member for North East Fife, (Sir Menzies Campbell), set out the facts as they had then been established: there had been three instances in 1998 where the US authorities had requested permission to render a detainee through UK territory or airspace; and in two of these cases, where the detainee was to be transferred to the US for trial, the US request had been granted. In the other case, it had been refused. I added that officials continued to search the records.

13 December: I discussed these issues at length in my public evidence session with the Foreign Affairs Committee.

10 January: I issued a written ministerial statement saying that Foreign and Commonwealth Office officials had now completed a search of their records back to May 1997. This search had turned up one further case, also in 1998: the Government had declined a US request to refuel a flight carrying two detainees en route to the US.

To summarise the position:

We have found no evidence of detainees being rendered through the UK or Overseas Territories since 11 September 2001.

We have found no evidence of detainees being rendered through the UK or Overseas Territories since 1997 where there were substantial grounds to believe there was a real risk of torture.

There were four cases in 1998 where the US requested permission to render one or more detainees through the UK or Overseas Territories. In two of these cases, records show the Government granted the US request, and refused two others.

Since before September 2001 we have worked closely with the US to achieve our shared goal of fighting terrorism. As part of that close co-operation, we have made clear to the US authorities, including in recent months:

that we expect them to seek permission to render detainees via UK territory and airspace (including Overseas Territories);

that we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations, and

how we understand our obligations under the UN Convention Against Torture.

We are also clear that the US would not render a detainee through UK territory or airspace (including Overseas Territories) without our permission. As noted above, the US has sought such permission in the past.

The Government are committed to fulfilling their obligations under United Kingdom and international law. I have sought throughout to keep the House informed of developments. And shall do so again if new information comes to light.

Now having read the contents of the leaked memo, in full, and Jack Straw’s statement, I want to leave you with one simple multiple choice question to ponder.

I know which explanation I find most plausible

License

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