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BRIEFING: DIEGO GARCIA LITIGATION <br>
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<a href="http://www.reprieve.org.uk/mohammedsaadiqbalmadniactionagainstbritishgov" eudora="autourl">
http://www.reprieve.org.uk/mohammedsaadiqbalmadniactionagainstbritishgov<br>
<br>
</a><b>On Tuesday 28th July Reprieve will announce a lawsuit against the
British government on behalf of torture victim Mohammed Saad Iqbal Madni.
<br>
</b> <br>
Reprieve believes the UK shares responsibility for the illegal rendition
of Mr Madni through the British Overseas Territory Diego Garcia, and thus
for his subsequent torture and ill treatment in Egypt, Afghanistan and
Guantánamo Bay. <br>
<br>
Reprieve will launch two distinct sets of legal proceedings on behalf of
Mr Madni.<br>
<br>
1) Legal action in the Supreme Court of the British Indian Ocean
Territories (BIOT), responsible for Diego Garcia, to compel the British
Colonial authorities to provide all information they have about Mr
Madni's extraordinary rendition through Diego Garcia and his subsequent
ill-treatment and torture.<br>
<br>
2) The same action in the UK Courts to compel the UK Government to
provide all information they have about Mr Madni’s case. <br>
<br>
The reason for bringing the claim in both jurisdictions is that the
colonial authorities and the UK Government are legally distinct and
subject to the two different jurisdictions. The BIOT Court also
only exists in theory; no civil claim has ever been brought there because
there is no civilian population on Diego Garcia. <br>
<br>
These two claims are required in order to obtain an admission that Diego
Garcia was used in Mr Madni’s case to assist his unlawful rendition and
ultimate torture in Cairo and elsewhere. If these actions are successful
in establishing the facts, subsequent claims can then be brought by Madni
for damages in a number of jurisdictions.<br>
<br>
<b>Background<br>
</b> <br>
The issue of illegal detentions and renditions involving Diego Garcia was
first publicly raised in December 2002 in an open letter authored by
Human Rights Watch UK and addressed to ex-Prime Minister Tony Blair. It
warned: “The treatment of detainees on Diego Garcia…implicates the legal
obligations of the British government.”<br>
<br>
In a subsequent series of parliamentary questions and answers between
2003 and 2008, the British government consistently denied the presence of
detainees on the island, repeatedly referring to “firm assurances” given
by the United States that “at no time have there been any detainees on
Diego Garcia. Neither have they transited through the territorial seas or
airspace surrounding Diego Garcia.” (UK Intelligence and Security
Committee’s report on renditions, July 2007)<br>
<br>
The UK’s sole reliance on US assurances belies the fact that there is a
significant British military and administrative presence on Diego Garcia
– “the Brits own the island”, according to one former US serviceman – and
that the UK also has clear civil and criminal legal jurisdiction.<br>
<br>
Diego Garcia is part of the British Indian Ocean Territory (‘BIOT’). Its
independent administration is run by the East Africa Desk of the Foreign
and Commonwealth Office (‘the FCO’) in London. The Commanding Officer of
the island’s civil administration is the British Representative, who is
under the authority of the FCO. The British Representative is also
Commander of the Royal Navy, the Magistrate, the Coroner, and the
Register of Marriages. Approximately fifty further British Royal Navy and
Marines personnel work for the civil administration.<br>
<br>
While the 1966 Anglo-American Agreement grants the US military
authorities the right to exercise criminal and disciplinary jurisdiction
over persons subject to US military law, the UK authorities retain
“exclusive jurisdiction over members of United States forces with respect
to offences, including offences relating to security, punishable by law
in force in the territory but not by the law of the United States.”<br>
<br>
Finally, on 21st February 2008, David Miliband conceded by statement to
Parliament and by letter to Clive Stafford Smith that, contrary to US
assurances, two rendition flights carrying US prisoners had stopped on
Diego Garcia for refuelling in January 2002 and September 2002
respectively. Despite his pledge at that time to “work through the
details and implications of this information”, the British government has
done nothing further to clarify the situation beyond the Foreign
Minister’s declaration on 12th February 2009 (in response to a
parliamentary question) asserting that both individuals rendered through
the island had been returned to their native countries.<br>
<br>
With the limited information made available to them, Reprieve identified
one of the two detainees as Mohammed Saad Iqbal Madni based on this
process of deduction:<br>
<br>
· One of the prisoners
was released from Guantánamo at some point between 14th February 2008 and
November 2009.<br>
· From that list,
individuals apprehended after January 2002 were discarded.<br>
· From that list,
individuals whose detention histories do not include renditions where
Diego Garcia would be a feasible refuelling stopover were discarded.<br>
· One detainee remained:
Mr Madni.<br>
<br>
Mr Madni was seized at 4am on 9th January 2002, in Jakarta, Indonesia. He
reports that on the evening of 10th January he was bundled aboard a
plane, which took off around 10pm. This is corroborated by eyewitness
reports at a military airport in Jakarta and by Eurocontrol flight logs.
Mr Madni has also stated that the plane stopped over once during the
flight from Indonesia to Egypt. During the stopover he was hooded, and
never removed from the plane, although cameramen entered the plane and
photographed him.<br>
<br>
The Gulfstream jet, tail number N379P, which was almost certainly used in
Mr Madni’s rendition has a cruising speed of between 459 and 585 knots.
Not only would a stopover on Diego Garcia be eminently feasible in a long
flight across the Indian Ocean, but furthermore Mr Madni’s estimates of
the durations of both legs of his journeys are consistent with the
distances between Jakarta, Diego Garcia and Cairo and the cruising speed
of N379P.<br>
<br>
Eurocontrol flight logs indicate that N379P stopped over in Cairo for six
days after dropping him, before returning to Washington via Prestwick
(again utilising UK territory). It is possible, therefore, that some of
the US rendition crew were present at Madni’s interrogations on 11th and
12th January, during which masked men were present who passed notes to
his Egyptian interrogators.<br>
<br>
During his rendition flight, Mr Madni reports, he was bleeding from his
mouth, nose and ears, and shackled so tightly that he was unable to move.
Once in Cairo, he alleges, his Egyptian interrogators tortured him using
electric shocks and drugs, attempting to extract confessions of meetings
with Osama bin Laden and trips to Afghanistan that had never taken place.
<br>
<br>
He had been apprehended by the Indonesians at the behest of US
authorities after commenting to a radical Islamist whom he had met in
Jakarta that bombs could be hidden in his shoes; intelligence agents
monitoring the man picked up on this comment and made a connection with
Richard Reid’s failed shoe bomb attack. Mr Madni was, in the words of his
uncle, a man who “had a childish habit of trying to portray himself as
important”, and according to a US intelligence official, a “blowhard
[who] wanted us to believe he was more important than he was”; the
comment was no indication of genuine threat.<br>
<br>
From Cairo, Mr Madni was transferred first to Bagram Air Base in
Afghanistan, and subsequently to Guantánamo. At Bagram he was shackled
and handcuffed in a small cage with other detainees, and for a period of
six months was shifted from cell to cell every few hours so that he was
deprived of sleep. By the time he arrived in Guantánamo he was, according
to fellow prisoners, “passing blood in his feces” and having bladder
problems; his interrogators apparently made full cooperation a condition
of medical treatment. He went on three hunger strikes and attempted to
hang himself twice. <br>
<br>
Mr Madni ultimately spent over seven years in US custody. Consequently he
is now unable to walk unaided and suffers debilitative psychological
scarring.<br>
<br>
The 1976 Exchange of Notes between the UK and US governments in relation
to Diego Garcia clearly requires that the UK must be informed of all
intended movements of US ships and aircraft on or through BIOT territory.
In addition, the UK Foreign Office has stated that the US would require
the permission of the UK to bring “unlawful combatants” onto the
island.<br>
<br>
Despite this, it has been extremely difficult to obtain any flight
records involving Diego Garcia. In response to questions about this,
Margaret Beckett has said: “It was very difficult for the
government…There was not a clear, simple trace of record keeping.” More
than one independent source has suggested that flight logs through Diego
Garcia have been destroyed. <br>
<br>
Another possible explanation for the absence of conventional flight
records may be that Mr Madni’s rendition flight operated under a “special
status designator” (STS indicator). An examination of detailed records
available for four other rendition flights conducted by N379P reveal that
the plane routinely operated under such indicators. If they were used in
the course of Mr Madni’s flight, these indicators would suggest knowledge
of, authorisation for, and full collaboration in, the rendition at the
highest echelons of both operating state (the United States) and host
state (the United Kingdom).<br>
<br>
<b>INFORMATION NEEDED FROM THE BRITISH GOVERNMENT<br>
</b> <br>
The UK Foreign and Commonwealth Office must urgently clarify:<br>
<br>
· The scope and terms of
the FCO’s “inquiry” into renditions, and is the inquiry ongoing.<br>
· How long it has known
the identities, rendition histories and current situations of the people
concerned.<br>
· Why it has not released
this information.<br>
· What assurances, if
any, have been sought by the British and/or granted by the Americans in
relation to these individuals, and when.<br>
· When the British
government became aware of the apprehension of Mohammed Saad Iqbal Madni,
or of an individual believed at the time to be a close associate of
Richard Reid.<br>
· If they knew about Mr
Madni’s apprehension at the time that he was transferred through Diego
Garcia.<br>
· If and when any British
personnel saw or spoke to Mr Madni while he was being transferred through
Diego Garcia or at any time between his apprehension in January 2002 and
his release in August 2009.<br>
· If and when the British
government sought assurances from the US or Egyptian government as to Mr
Madni’s treatment while he was in Egypt.<br>
· If and when the British
government sought assurances from the US government as to Mr Madni’s
treatment while he was in Afghanistan.<br>
· If and when the British
government sought assurances from the US government as to Mr Madni’s
treatment while he was in Guantánamo.<br>
<br>
The UK Foreign and Commonwealth Office must urgently reveal:<br>
<br>
· All records and
communications, including flight logs, flight manifests, and any other
records, corroborating Mr Madni’s account of his illegal detention and
torture in Egypt.<br>
· All records and
communications, including flight logs, flight manifests, and any other
records, corroborating Mr Madni’s account of his illegal detention and
torture in Afghanistan.<br>
· All records and
communications, including flight logs, flight manifests, and any other
records, corroborating Mr Madni’s account of his illegal detention and
torture in Guantánamo.<br>
· All internal UK
government, military and other communications and records relating in any
way to flights through, or transfers of prisoners through, Diego
Garcia.<br>
· All communications and
records between the UK government or military and any foreign government
or military relating in any way to flights through, or transfers of
prisoners through, Diego Garcia.<br>
· How many flight logs
were destroyed and their content.<br>
· The routine practise
for destruction of such records.<br>
· When these particular
records were destroyed.<br>
· Why these particular
records were destroyed.<br>
· When the first
questions were posed about rendition flights.<br>
· Whether the records had
been destroyed by the time questions were regularly being posed about
rendition flights.<br>
· Who authorised the
destruction of these logs, and who was aware of the decision either at
the time or subsequently.<br>
<br>
The UK Foreign and Commonwealth Office must urgently request:<br>
<br>
· Any records and
communications, including photographs, corroborating Mr Madni’s account
of his illegal detention and torture in Egypt from the US
government.<br>
· Any records and
communications, including photographs, corroborating Mr Madni’s account
of his illegal detention and torture in Afghanistan from the US
government.<br>
· Any records and
communications, including photographs, corroborating Mr Madni’s account
of his illegal detention and torture in Guantánamo.<br><br>
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