Dermot Ahern (Louth, Fianna Fail)

I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

"noting that:

—the Government have on numerous occasions voiced their complete opposition to the practice of so-called "extraordinary rendition" (hereinafter referred to as "extraordinary rendition");

—the Government have responded urgently from the outset to allegations of extraordinary rendition, including by consistently raising the matter with the US authorities from the very earliest stage, and through the Minister for Foreign Affairs urging that the EU pursue the issue actively with the US;

—the Government have repeatedly raised their concerns about the matter of extraordinary rendition with the United States Government and have in this context received categorical assurances, confirmed by the Secretary of State of the United States;

—the United States authorities have not offered such blanket assurances to all partners;

—An Garda Síochána has the legal powers required to investigate allegations of illegal activity;

—in none of the allegations regarding extraordinary rendition investigated by An Garda Síochána has credible evidence been evinced that illegal activity had occurred;

—the Government's position in respect of the regulation of military and civilian aircraft has been fully in line with those of our European partners; and

—the Government have co-operated fully with both the Council of Europe and the European Parliament in their investigations, such that Ireland's explanation of its law and practice in this area to the Council of Europe was one of only nine, out of 45 received, that the Secretary General of the Council of Europe judged to be sufficiently comprehensive not to require further clarification;

—shares the Government's complete opposition to the practice of extraordinary rendition and to the use of torture in any circumstances, and its call for the earliest possible closure of the detention facility at Guantanamo Bay;

—welcomes the Government's policy of not permitting the use of Irish territory to transport prisoners for extraordinary rendition purposes;

—notes that none of the draft Council of Europe or European Parliament reports prepared to date has claimed or produced any evidence to the effect that any person has been subject to extraordinary rendition through Irish territory;

—notes that claims that aircraft previously used for illegal purposes may have subsequently passed empty through Ireland are based on the retrospective interpretation of patterns of flight data, which could not at the time be used for the purposes of control or verification;

—rejects the baseless suggestion that the Government may in some way have "colluded", actively or passively, in extraordinary rendition operations;

—commends the Government for promptly obtaining from the United States, in the context of the issue of extraordinary rendition, categorical assurances that prisoners have not been transferred through Irish territory, nor would they be, without our permission;

—recognises that reliance on such assurances of a factual character is a basic principle of international relations;

—commends the Government for fulfilling their legal and constitutional responsibility, and their obligations under international law, to take all appropriate steps to ensure that the territory and facilities of this State are not used for illicit purposes and especially not for human rights violations by any other state;

—endorses the Government's call for anyone with any specific evidence that any person has been subject to extraordinary rendition through Irish territory to bring such evidence to the attention of An Garda Síochána;

—commends the Government's willingness to consider carefully, with partners, any specific and workable recommendations that may be made by the Council of Europe or the European Parliament in this matter;

—shares the Government's concern at a recent breach by the United States of procedures governing the transfer of sentenced prisoners; and

—commends the Government's decision to take appropriate steps to prevent any recurrence of this incident, including engagement with the United States authorities and the strengthening of verification procedures as necessary."

I welcome the opportunity to address the House on the issue of extraordinary rendition. Discussion of this issue has been distorted by rumours, assumptions and half-truths and I hope the debate will help clear up some fundamental misunderstandings in that respect. Naturally, I reject Deputy Michael D. Higgins's assertion that we have not complied with our positive obligations to prevent torture. I will explain that position later.

I wish once again to reiterate the Government's complete opposition to the practice of extraordinary rendition. This has been the Government's position since the existence of this practice was revealed. It has been made clear to the US authorities on numerous occasions, including at the very highest levels. To my knowledge, Ireland's was the first Government to raise this matter with the US Government, just as I was the first Minister to raise it with my EU colleagues last autumn under the British Presidency.

Partly as a result of our prompt action, the United States authorities gave Ireland categorical and unqualified assurances. These have been repeated on many occasions, including directly to me by Secretary of State Rice. It is worth highlighting that the United States Government has declined to issue similar blanket assurances to most other member states. We were one of only three countries in this position in Europe. These assurances were issued having been confirmed by all of the agencies which might be involved in such operations.

Those who speak of the Government doing nothing overlook the critical fact that we acted swiftly and decisively to confirm the realities of the situation. In his recent report Senator Marty makes no claim that prisoners may have been subject to extraordinary rendition through Ireland. This is confirmed by many others. To take one example from last weekend's newspapers, a journalist with a strong defence background, John Clarke, cogently set out why it would make no sense to move a terrorist suspect through a civilian airport like Shannon. In fact, that extraordinary rendition has not taken place through Irish territory in this manner is largely accepted in the wording of the Labour motion, which focuses on the Government's positive obligation to ensure that it does not facilitate torture by indirectly assisting rendition flights. I will go on to explain why the Government is confident it is fully implementing this obligation. However, given the nature of many of the allegations which have been made, I hope the public will register the fact that even critics of the Government no longer claim that any extraordinary rendition has occurred through Ireland.

I wish to address a number of points. First, I will devote some time to Senator Marty's report. I will then address the issue of diplomatic assurances and positive obligations before addressing the developments over the weekend that I outlined in a press statement earlier today.

I agree, despite the pervasive lack of hard evidence, that many of the aspects of Senator Marty's report are disturbing. It confirms why we are right to oppose extraordinary rendition. However, as regards the specific case of Ireland, Senator Marty's report produces absolutely no new evidence to implicate the Government in the practice. As was noted in the Irish Examiner over the weekend "there is no proof of anything". The Irish Independent editorial of the same day stated the report was long on anecdote and short on facts. Moreover, not only is there a complete lack of evidence, the report lacks a clear chain of reasoning. It simply contains some cursory assertions, including one that Ireland "could be held responsible for collusion" for being a "stopover" for flights involving the unlawful transfer of detainees. I utterly reject this assertion, which seems to be based, as I will go on to explain, on a quite implausible and ill-founded analysis of what might conceivably have been possible for us to do.

Stephen Grey, a well known The New York Times journalist who specialises in this area, while giving evidence at the European Parliament examination of this issue, was questioned by Deputy Eoin Ryan, MEP as to whether he felt Shannon would be used. His answer was that this was highly unlikely. Tom Clonan, an Irish defence expert who has visited and spoken with staff at Guantanamo Bay, has reiterated recently — he outlined this position some months ago on live radio — that it was highly unlikely that Shannon was used, and that as far as the staff at Guantanamo were concerned, it was not used in any way in this respect.

Senator Marty fails to take account of our complete opposition to extraordinary rendition and the categoric assurances we have received that it did not take place through Ireland. To allege collusion without addressing either of these points is grossly unfair. Moreover, neither Senator Marty nor anyone acting on his behalf made a single approach or addressed a single query to the Government or our permanent representative to the Council of Europe.

It has been the Government's consistent position — I reiterate it again — that the Government will consider carefully with partners any specific and workable recommendations that may be made by either the Council of Europe or the European Parliament in this area. I anticipate that much of what both bodies will have to say will require co-ordinated action at a European level if it is to be effective.

Some commentators have claimed that every type of diplomatic assurance is suspect or insufficient. Such a development would represent a revolution in the way states conduct business with one another and, in the Government's view, is wholly unwarranted. In its response to the questionnaire circulated by the Secretary General of the Council of Europe, the Government outlined in considerable detail its view of its international law obligations relating to its positive obligation to prevent torture. In his analysis, the Secretary General made no indication that he had any objection to the Government's position on this matter, although it was clear he had read our response fully.

In essence, as I set out in a letter earlier this year to the Irish Human Rights Commission, it is the Government's view that there is a misunderstanding and misinterpretation of the relevant international case law. This does not in fact deal with assurances generally but rather, and explicitly, with assurances given in the context of the extradition or expulsion of a particular individual from one state to another. The cases in which the European Court of Human Rights has examined diplomatic assurances, to which the Deputy referred, have involved concrete situations in which a known individual is being deported to a particular state, and the assurances are given relating to matters over which the state does not exercise full control. The assurances given by the US authorities are factual, unqualified by any reference to the purpose or nature of any hypothetical transfer and to the effect that no persons have been so transported through Irish territory. This is clearly a matter entirely within the control of the US authorities. As such, these assurances are clearly of an entirely different nature to those considered by the European Court of Human Rights. The court has never held that a factual assertion by a State on a matter directly within its full control cannot be fully relied upon.

It is appropriate also to refer to the positive obligation on all contracting parties to prevent violations of Article 3 of the European Convention. In considering the nature of this obligation and Article 2, the court has held that a state's positive obligation is not unlimited and that not every claimed risk "can entail a Convention requirement to take operational measures to prevent that risk from materialising". It has also ruled that the obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the relevant authorities.

Suggestions of collusion and failure to fulfil positive obligations may have some basis where one is dealing with states which wilfully ignore potential illegality on their territory, but that is patently not the case with Ireland. To repeat, ours was the first Government, when rumours of extraordinary rendition emerged, to raise with the US authorities our concerns about the matter. Ours was the first Government to demand assurances that our territory would not be used for such purposes. To speak of a failure to act, which is the essence of the charge on positive obligations, against such a background of pro-active intervention, is quite unreasonable.

A number of bodies have suggested that our positive obligations under international law may require that searches of aircraft be carried out to meet our obligation to ensure that Ireland is not used as a transit point for extraordinary rendition flights. As has been repeatedly made clear, the Garda Síochána has the powers it needs to investigate all allegations of illegal activity. There is no legal bar to the search of civilian aircraft of the type allegedly involved, where there is a basis for doing so. With regard to Deputy Michael D. Higgins's remark that the Government has not sent in the gardaí, he has a somewhat twisted view of the power of the Government. Perhaps it was the case that when he was a Minister he could send gardaí hither and thither——

See this speech in context