SECRET UK EYES ONLY JN THE HIGH COURT OF JUSTICE CO/11949/2008 QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT BETWEEN: THE QUEEN on the application of MAYA EVANS Claimant and — SECHETARY OF STATE FOR DEFENCE Defendant |, BR ©) Ministry of Defence, Main Building, Whitehall, London, WILL SAY as follows: lam the Head of Legal Policy within the Operations Directorate in the Ministry of Delence, which is a Senior Civil Servant and 1* post. | have held, this particular post for 15 months. Since | joined the MoD. in. 1978.1 have held. a number. of posts covering many aspects of MOD. business. In my current role | am responsible for central Departmental. policy gas Cue legal issues as they affect military. operations. l have been asked to make this statement to. cain the circumstances surrounding the iranster of one. insurgent to the NDS facility at Kabul on 15 January 2010, notwithstanding ihe existing moratorium on transfers to. this facility. | also explain the assessment ol. risk which was undertaken at the time of transfer, what safeguards were put in place to mitigate the risks, and issues resulting from this transfer. 3. Insofar as the matters to which | shall refer in this statement are within my own knowledge, > they are true; insofar as they are not within my own knowledge they are based on documents | have seen or are derived from the persons or sources | identity, and | believe them to be true. Transfer of detainee on 15 January 2010 to Kabul SECRET UK EYES ONLY o/s A, foal SECRET UK EYES ONLY ‘The fact of this transfer was first explained in a letter from the Treasury Soticitor to Ihe court dated 25 January 2010. Given the highly classified nature of the information, it was not possible lo set oul much information in open correspondence, so | now set out further information in this closed witness statement, As has been explained in evidence already before the court, the Defendant imposed a moratorium on transfers of UK captured detainees to Kabul in December 2008, in response to problems gaining access to the facility. This moratorium remains in place. However, following very caretul consideration, the Foreign Secretary and the Minister of State for the Asmed Forces decided to make an exception to this moratorium in respect of one UK captured detainee who was transferred on 15 January 2010 to an arm of the NODS in Kabul eM |e covnter-tesrorist detachment of the NDS). The detainee is a senior figure in the insurnancy. involved in attacks on UK and Coalition forces and Afghan civilians. As the court wilt be aware, UK Armed Forces now ordinarily transfer ail UK captured detainees to the NDS in Lashkar Gah, Helmand Province. However, | assessed, after receiving reports from UK personnel in theatre and after consultation with other MOD and FCO officials that this was not a viable option in respect of this important insurgent yaaa Not only would this have prevented the Afghan authorities from prosecuting 1 Qpmatiie insurgent, but it would undermine the status and authority of the rule of law in the eyes of the population of Helmand, putting al risk progress on one of the key elements of the international community's efforts to support the democratically elected government of Afghanistan, as mandated by UN Security Council Resolutions. SECRET UK EYES ONLY oF} 10, A Secondary consideration was that there was, we believed, a far greater prospect of this detainee being Successfully prosecuted in Kabul, the Alghan centre of counter-terrorism expertise, than if he was transferred to Lashkar Gah where Counter-lerrorism skills and reSOUrces are not readily available. We further assessed that upon release there was a real likelihood that he would return immediately to activities within the insurgency which threaten directly the lives of Afghan civilians and UK and Coalition forces and undermine the Purpose of the ISAF mission which is, inter alia, to assist in the maintenance of security in Afghanistan, We therefore considered alternative solutions, including release. We concluded that release was an option to be avoided as far as possible because the intelligence assessment was he would have returned immediately to activity Supporting attacks in Helmand. As we do nol have a power to detain indefinitely, transfer to the Afghan authorities was the only viable alternative if he was to remain in custody and transfer to the NDS Kabul was the only viable alternative i! the Afghan judicial process was to work effectively with this insurgent, as Kabul was the one location where the Atghan authorities had the necessary counter-terrorism skills. Nevertheless, however weighty our concerns about his release, we were equally conscious that we could not transfer this insurgent to Kabul if there were substantial grounds for have been contrary to our policy. Accordingly, we Sought to assess the risk of this detainee being subjected to torture or Serious mistreatment upon transfer to the NDS in Kabul. Although the NDS had requested that the insurgent be transferred to the NDS's counter-terrorist detachment Gi. which has not been implicated in any allegations of mistreatment, we considered that it wags very Probable, if their investigation was Successful, that he would subsequently be transferred to NDS Qa (the investigations and pre-trial detentions division), We therefore based our SECRET UK EYES ONLY SECRET UK EYES ONLY assessment of ihe risk of this detainee being seriously mistreated or tortured on an assumption that he would be detained by the NUS in @ig as well a5 initially 17 ae We were mindful of the current moratorium in respect of transfers to the NOS in Kabul. In particular, we took into account the reason it had initially been imposed in December 2008 that is, because we had been concerned about difficulties we were then having obtaining access to detainees held by NDS QW in Kabul. We also took into account the fact that the moratorium has been maintained in force following the resolution of those access problems because a number of subsequent allegations of mistreatment by NDS Qj have been made by detainees, in respect of which investigations are ongoing. We also took into account the fact that the named perpetrator in the alleged mistreatment a1 Qa has been dismissed, we believe as a result of his behaviour. In anticipation of a possible transfer, representations were made by HM Ambassador to Afghanistan to NDS Director General Dr Saleh, by letter and in person, underlining the imperative need to adhere to the provisions of the Memorandum of Understanding (MOU) were this detainee to be transferred (and generally), In response, Or Saleh gave specific reassurances that this detainee would be treated humanely, and that UK officials would be given full access to him in accordance with the terms of the MOU between the UK and Afghan Governments. This provided reassusance that the earlier concems over limitations to access and the absence of completed investigations into allegations of mistreatment were mitigated. Very careful consideration was given by me and my colleagues, both in the MOD and the FCO, and then by Ministers, to whether this insurgent would be at real risk of serious mistreatment it transferred to the NDS in Kabul. Taking into account the matters set out above, the Foreign Secretary and the Minister for Armed Forces each, independently, decided that there was not such a risk and that an exception to the moratorium on transfer to the NDS in Kabul could accordingly be made in this case. As | have stated, the transfer took Place on 15 January and the British Embassy staff in Kabul (BEK) made contact with the NDS Liaison Officer on 20 January requesting permission to visit soon thereafter. Unfortunately, the chaotic and tragic events following the various suicide bomb attacks on Kabul on Monday 18 January made immediate contact with the NDS very difficult as many of them were deployed over the next few days to investigate the incidents. SECRET UK EYES ONLY SECRET UK EYES ONLY 18. After this initat delay, BEK staff experienced considerable difficulty wilh gaining access to the insurgent despite repeated alternpts to arrange a visit. | have annexed to this statement all ihe emails setting out the allempts to arrange a visit. In summary, BEK statl contacted the NDS on an almost daily basis and as can be seen from the email from Gernrmna Paolucci [4 February 18:20} on many of these days there were several attempts. There were 2 key factors which prevented these visits: the first being the absence of Dr Saleh (the Director General of the NDS) who was out of Country for several days and irom whom it transpired S&avwoc personal permission was required to gain access to 3 @aiee detainee in Kabul. @p 19. On27 January, BEK were informed that on 20 January the detainee had been transterred to NDS QE So the visit, once arranged on 14 February, took place at this location. Qa» 20. SECRET UK EYES ONLY uo S2. 25. SECRET UK EYES ONLY The moratorium on the transfer of detainees to the NDS in Kabul remains otherwise in force. No detainee will be transferred to the NDS in Kabul other than, as In this case, following a decision by Ministers. In the event that the situation arises again where UK Armed Forces capture a detainee who cannot effectively be detained and prosecuted other than in Kabul, a fresh decision would be made as to the risk of ihe detainee being subjected to torture or serious mistreatment. Any such reconsideration would, of course, take fully into account the problems that BEI initially encountered securing access to this detainee, QE Gears It would not be appropriate for me to pre-empt the assessment that would have to take place in such clrcumstances. But | wish to make it clear that we will not vanster any detainee to the Afghan authorities if we assess that there is a real risk at the time of transfer that he will be subjected to torture or serious mistreatment. SECRET UK EYES ONLY SECRET UK EYES ONLY Statement of Truth | believe the contents of this Stalement are ¢, Signed | MeL Be io SECRET UK EYES ONLY SY