Iraq war and the test of exceptionality: Jaloud v Netherlands

On April 21st, 2004, 13 months after the beginning of Operation Iraqi Freedom, the Iraq war was entering its post-invasion, direct occupation phase. The Coalition Provisional Authority (CPA), led by Paul Bremer, had divided Iraq in four zones, under three different leaderships: US forces would have control over northern and central Iraq; Southern central Iraq would be under multinational power, under Polish command; the Southern zone, also under multinational power, would be led by UK forces. The CPA was led by the two major occupiers of Iraq – the US and the UK – and allies Australia and Poland. The assisting forces, additional troops on the ground forming Combined Joint Task Force 7, created the multinational alliance operating under the United Nations Security Council (UNSC) Resolution 1483. One nation deploying troops in southern Iraq at the time, under British command, was the Netherlands.

Gate of Camp Smitty in Al-Muthanna province, courtesy of the Australian government

Route Jackson, a main supply artery coursing through the zone in the province of Al-Muthanna, operated with different security checkpoints. One of them, named B-13, was operated by members of the Iraqi Civil Defense Corps (ICDC) under Dutch supervision. Barrels were situated in a manner to announce the checkpoint; cars were not systematically stopped, but advised to slow down in order to submit to an eventual check by the armed forces in charge of B-13. At 2.12am, a car approached the checkpoint; turning around, shots were fired from inside the car and at the ICDC forces. No one was injured, and as fire was returned, the car hastily drove away. The next facts are somehow disputed by the counsel and government; in matters of chronology and decision-making, the case rests on what follows: fifteen minutes after the first car disturbed the checkpoint, an ICDC sergeant summoned Dutch troops for assistance, troops led by Lieutenant A. Around 2.45, a Mercedes arrived near the checkpoint, hitting some of the announcing barrels on the way. Not deterred, the car continued to drive towards the checkpoint. At this moment, shots were fired at the car; Lieutenant A. shot 28 rounds from a Diemaco assault rifle, and ICDC troops would have added to the gunfire, firing shots from AK-47s.

Azhar Sabah Jaloud, son of the applicant in the case, was in the front passenger seat of the car. He suffered several bullet wounds, in arms and in the chest. Dutch troops removed him from the car and tried to administer first aid help; however, Jaloud died from his injuries an hour later. He was 29 years old.

Of all the issues raised in this case, two stand out, one that has already been covered but is unlikely to be effectively, quickly and satisfactorily resolved; the second, a stigmata of an ongoing crisis of trust and discrepancy between power and abuse of power. There will be plenty more of those cases going through the pipes of domestic courtrooms then to Strasbourg; the process will take years, years during which Iraq and its increasing instability, political corruption and chaotic mayhem will reach headlines, then disappear into the oblivion of a mission supposedly accomplished a decade ago. What will remain, however, are the skeletons of a type of warfare technology is seeking to remove us from, and the impossibility of properly enforcing the rule of law, human rights and humanitarian alike, domestic and international, unless a willingness from unconventional lawyers and activist judges push forward the aforementioned test of exceptionality.

Responsibility can’t be asserted without jurisdiction; jurisdiction can’t be declared without rules of engagement; conditions of warfare can’t be publicly debated without governmental transparency.

Checkpoint on Highway 1

The imperialistic nightmare: extraterritorial jurisdiction…

It is absolutely not surprising that the United Kingdom chose to file as a third party in this case, and be represented before the Grand Chamber one more time by James Eadie QC. Three months ago, Eadie had addressed a more or less similar case before the Court, enouncing the very same arguments: there is no such thing as extraterritorial jurisdiction; Article 1 of the Convention is very clear and does not leave much to interpretation; the Bankovic jurisprudence refused to extend jurisdiction beyond the scope of territoriality except in international humanitarian case-law. The Netherlands government found comfort, alliance and support in the presence of the United Kingdom, one of the two nations designed as Occupying Powers (OPs) under the Geneva Conventions and the relevant UNSC resolution covering the occupation of Iraq. Surely, if the United Kingdom felt free to declare they had no jurisdiction over the actions committed in, around, and beyond Camp Bucca, an assisting state such as the Netherlands could never claim to have the control necessary to extend jurisdiction to the actions of their own troops.

But someone had control over Iraq at the time; and the key lies within two documents – the UNSC resolution and the Memorandum of Understanding governing the rules of engagement of Dutch troops at the time. The latter, however, is not available for public use or has even been released to lawyers for the purpose of the litigation at hand. If we consider the arguments submitted by the Netherlands in this case:

Many shades of grey can be distinguished. There are questions of authority and control and how they relate to one another. Jurisdiction has an essentially territorial meaning – extraterritoriality is linked to exceptional circumstances. (…) There is a reluctance to globalisation by legal means of extension of human rights instruments, and this reluctance is still key.

It is absolutely correct that any extension of Article 1 has been met with absolute reluctance, even on the part of the Court itself – the famous Bankovic ruling on the admissibility (2001) that has become a point of reference for any respondent government before the court in cases of counter terrorism operations abroad or military deployment. The extension of human rights instruments – that is, the Convention to which each Council of Europe (CoE) member states is legally bound – should not exceed the frontiers of those states, and it would appear that international armed conflict, be it in the form of invasion or occupation, does not require the ECHR to be implemented in cases of a violation, regardless of its degree of gravity – in this situation, Article 2, the right to life.

In Bankovic v Belgium – and 16 other states, all members of NATO – were accused by the applicants of a violation of Art 2 for the bombing and destruction of Radio Televizije Srbije (Radio-Television Serbia, RTS) in 1999. 16 were killed, and 16 more injured. The Court ruled there was no jurisdictional link between the NATO forces and the survivors or families of the deceased; in a decision that made waves, but is difficult to decipher:  it was said that the public order mission of the Court was for European purposes only; for the observance of the member-states on their own legal space only. The Federal Republic of Yugoslavia, not party to the Convention, characterized the Bankovic complaint as extra-territorial. The Court then assumed that the Convention was not designed to be extended outside of the scope. Perhaps it was not designed to be so; the history of the European Union clearly did not tend to originally evolve away from the absolute concept of national sovereignty, especially since the founding members all had extensive colonial territories and thought of expansion as a prerogative of an empire, not that of the law, much less a law protecting individual, civil and fundamental liberties. What both the United Kingdom and the Netherlands avoided was para. 70 of the Bankovic decision:

(…) the Court found that, bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party was capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the Convention rights and freedoms was found to derive from the fact of such control whether it was exercised directly, through the respondent State’s armed forces, or through a subordinate local administration. The Court concluded that the acts of which the applicant complained were capable of falling within (…) jurisdiction within the meaning of Article 1 of the Convention.

Referring to the Loizidou judgment, the Court engaged liability as a consequence of military action. If the extraterritorial jurisdiction can not be applied unless it falls under exceptional circumstances, and the Court never meant to exercise any of its powers outside of its contracting parties, military action indeed creates the authority and control, and the link between the two, that the Netherlands were initially mentioning in their opening statement as a justification not to extend jurisdiction. The case of war, however, seems to have reached the status of political normalcy for states engaging into armed conflict alongside the UK and the US in their endless war against terror; according to the Netherlands, “the mere presence of Dutch troops is insufficient to establish jurisdiction. Any different decision would go against the existing case law and the balance it represents.” Who said case-law was set in stone? Isn’t it the prerogative of a Court to extend – or, in any case, restrict – the scope of its powers according to the evolution of the events it is meant to characterize and arbitrate?  The Court continues:

In its subsequent Cyprus v. Turkey judgment (cited above), the Court added that since Turkey had such “effective control”, its responsibility could not be confined to the acts of its own agents therein but was engaged by the acts of the local administration which survived by virtue of Turkish support. Turkey’s “jurisdiction” under Article 1 was therefore considered to extend to securing the entire range of substantive Convention rights in northern Cyprus. In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.

The test of exceptionality hereby follows three components: it needs effective control of the area, as described by the Geneva Convention; control of territory and its inhabitants under occupation; and exercise powers – usually, referring to law enforcement, political administration – under normal governmental authority. The very same test of exceptionality was raised in December before the Grand Chamber and against the United Kingdom in Hassan v United Kingdom, when a former Camp Bucca prisoner was found dead while carrying his UK-issued prison ID tag with him. The United Kingdom having been designated an Occupying Power, it was only a matter of establishing leadership over Camp Bucca. In the case of administrating a whole territory of Iraq, the UNSC Res 1483 says:

Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”) ; Noting further that other States that are not occupying powers are working now or in the future may work under the Authority, Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority (…)

… and governmental transparency

The Netherlands are right in asserting being transferred under the authority of an OP is not an assumption of authority. Being listed as a member of the CPA, as an assisting state, however, clearly implies control of the area where the troops will be located. As of April 2004, the day of the incident, the Netherlands had deployed a contingent of roughly 1,300 troops in south-east Iraq. Operational control was transferred, as they claim, under British command of the SFIR – itself subordinated to the US lead commanders of the CPA in Baghdad. The Netherlands claim their limited authority was restricted to administrative tasks, certainly not those usually carried out by an OP – what the Res. described as follows:

Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;

This is where everything blurs itself in the line of responsibility, chain of command, and this absolute necessity of proving a jurisdictional link between Jaloud, his car, and the 28 rounds fired by Lt. A. The Netherlands’ rules of engagement, gathered in a Memorandum of Understanding, were never released publicly. The document was not even handed out to the Respondent Government’s counsel in preparation for the hearing. They were not debated in Dutch media or in any democratic sphere. In fact, no one knows exactly what is contained in this Memorandum, which or whose authority were the Dutch troops subordinated to, which laws they believed they were operating under, and who, in fact, were their lead commander. According to the distribution of territorial authority as illustrated above, south-east Iraq, and the province of Al-Muthanna, was under British command. According to their opening statement, the Netherlands operated both under British command and outside of the chain of command, carrying with them the sovereign right of withdrawing troops (again, according to a document that has never been submitted). If these assertions seem to not make much sense, consider the following sentence:

The authority remained with the Dutch authorities. This however does not engage a relationship between the Netherlands and the applicant.

The circumstances in which Dutch troops were deployed in Iraq were “perfectly normal”, the Counsel continued, and troops were never extended coalition powers. It was with a great degree of lucidity that the statement on jurisdiction ended with the statement that such a debate and decision on authority and effective control of the area “would be of great legal importance to included EU states.”

Words of hesitation and apparent confusion litter the statement of the Netherlands: the presence of Dutch troops at the checkpoint would be a “coincidence”; the death of Mr. Jaloud, “unfortunate”; the actions of Lt. A., although openly disproportionate to even the untrained eye, made “under the impression” of being attacked. As the lawyers for the applicant submitted, there are way too many inconsistencies in not only the circumstances surrounding the presence of Dutch troops at the check point, but even more tragically, the investigation that followed. From the autopsy that was carried out without any Dutch official present; a report that was never translated from Arabic, except mere weeks before this hearing; testimonies from ICDC members lost, then suddenly found and exonerating Lt. A. from responsibility. The applicant submitted that the investigation carried out was insufficient; the Netherlands responded that it was impossible to meet regular and domestic standards of criminal inquiry in such a volatile environment. However right he may be in practice, history has proved that the issue of imminent threat in an occupied territory often fuels insurgency more than it quells it. Solatia will only take the occupying powers – or their assisting state – so far in bringing civil society to the side of the troops that claimed to liberate them.

The difficulty lawyers for the applicant faced when trying to get to the bottom of the inquiry is not new. Since the War on Terror, cases brought before the Grand Chamber have been marred with national security exemptions, counter-terrorism human rights derogations, and failure to debate submissions due to classification of documentation. A proper hearing before a supranational court can not be satisfied with mere allegations or half submissions by the Respondent Government that has to report it is not proper nor appropriate for them to divulge the information to the Court. If there is such a deference to the national authority as opposed to the transnational – or supranational, depending on where one stands on the EU – power of the Council of Europe, it is also a matter of respecting the judicial authority as being impartial and empowered with equity and neutrality. Justice is not blind because it doesn’t see politics; justice has been blinded by the politics of never revealing fully the matters of international relations between sovereign states with their own citizens, their own lawyers, their own journalists. In the case of the Netherlands, that pales in comparison to the horrors inflicted by Poland in the Al-Nashiri / Abu-Zubaydah case, and the furious lawyers telling the Court they never had access to documents, it is history bearing heavy over the minds of the lawyers – and of the democratic society they represent. As the opening statement for the applicant stated,

A deployment of Dutch troops in post-war Iraq was a matter of much public domestic debate. Historically, occupation is a very sensitive topic to the Dutch, and the government took a great stance to specify that Dutch troops would not participate in the occupation of Iraq. (…) The authority vested upon the Dutch is contained in a caveat of the Memorandum of Understanding, caveat that the Government did not see fit to share. We thought it would have been important (…) the mandate could have decided of the jurisdiction. Having not shared this information, we believe the Government failed its obligations.

Later, when the Judges questioned both applicant and respondent, the issue of the classification of the MoU was raised. It was not clear to the Court – or anyone else attending the hearing, following the case – who clearly was the commander in the province at the time. If the Dutch authorities were effectively operating outside the chain of command, they would have effective control in and of themselves. If they were however subordinated to an Occupying Power, the responsibility of the Dutch troops would fall within the jurisdiction of the Occupying Power – in this case, the United Kingdom. The last question raised was, in fact, the only one: if the Netherlands were not an authority by themselves and had a chain of command – is the Netherlands claiming that the UK should be the proper respondent in the case? The response from the Netherlands is more telling, perhaps too telling:

I myself do not have the Memorandum of Understanding, despite my requests. It was refused due to levels of confidentiality. The Memorandum was written between the UK and the Netherlands… we do not feel at liberty to make this document available. You can call that a red card holder.

Judicial accountability as a deterrent to peace-keeping operations

In the Hassan v United Kingdom case, James Eadie submitted that the laws of warfare had changed, for “practical reasons”. It seems the practicality of choosing which international legal instrument one is bound to when deploying troops abroad is a severe and slightly perverted interpretation of the law that could be perceived as an attempt to skewer responsibility and accountability; because with jurisdiction, does not simply come the powers of administrating and keeping the peace – comes the duty to abide by the Geneva Conventions and the Hague Regulations. Both bodies, created before World War I, could be conceived as outdated, in the context of the War on Terror, where unilateral use of force is a normalcy and UN resolutions intervene ex post facto. Establishing a long lasting jurisprudence of extending extraterritorial responsibility seems absolutely paramount to the international legal order. The cases of civilian deaths in Iraq between 2003 and 2011 need to be addressed in a way that must be substantial as opposed to symbolic; severe as opposed to casual; and systematic as opposed to sporadic. There is no such thing as strict legality in a war trial; and the complexity of international relations arise in the least desirable moments, which is precisely when the United Kingdom comes to the stand to claim that there shall be no interference of European courts in the matters of Iraq, no matter how many troops deployed over a certain period of time, and no matter the unalienable rights and duties those European states signed up on when creating the Convention.

Three Judges of the Grand Chamber as James Eadie QC prepares to explain why the Court can’t extend extraterritorial jurisdiction. AGAIN.

It had always been the belief of the United Kingdom, and, frankly, the position of many states irrevocably attached to the issue of sovereignty that jurisdiction should never be extended. It seems from Eadie’s frequent appearances in Strasbourg, lately coinciding with Grayling’s outbursts against European interference, that the very fact the Kingdom responds to calls from the Court is already a miracle. When it comes to extraterritorial jurisdiction, it simply can not be. Human rights law maintenance in time of warfare can not, according to Eadie, “expand incrementally from case to case”. But beyond the simple refusal to abide by the rules of the Court in their military operations abroad, Eadie submitted a point that has once surfaced in the Behrami case: human rights law as enounced in the Convention can’t possibly restrict the mission granted by the UNSC under Chapter VII intervention. In this 2007 decision against France, once more in the context of the war in Kosovo, the court made this very important statement (para. 149):

Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.

Put simply, any mission carried out by EU member states and sanctioned by a UNSC resolution covered by Chapter VII – humanitarian intervention – doesn’t fall within the jurisdiction of the Court. To decide otherwise would be a hindrance to the mission itself, and even go against the wishes of the UN, whose supremacy isn’t questioned at any point. It isn’t question in this case, either. What is important to mention here, as Eadie quotes this paragraph in order to maintain that extraterritorial jurisdiction can’t be applied as it would be contrary to a peacekeeping mission abroad – is the wording. A Chapter VII resolution is not a sanction of unilateral use of force. It does not permit the invasion and semi-permanent or permanent occupation of a state. A Chapter VII resolution is voted and implemented as a peace-keeping mission, to restore security, the rule of law, establish provisional authority pending monitored elections, and progressively reconstitute the sovereign authority of the invaded state. A Chapter VII resolution always, always mentions that each contracting party in the resolution – be it straight OPs per the GCs or assisting states in the case of the CPA – must abide by international law standards.

the division of Iraq under Combined Joint Task Force 7, here in September 2003

Applying extraterritorial jurisdiction in the case of a wrongful death of a civilian during the occupation of Iraq is not a violation of the mission authorized by the Security Council. It is applying the international law standards that civilians are protected persons under the Geneva Convention and any wrongful death occurred should be thoroughly investigated by the respondent state and punished under the relevant criminal authority that has been described in the rules of engagement.

There are no rules of engagement publicly available for review in this case. The government of the Netherlands never released them, never debated its commitment and collaboration with the United Kingdom in the occupation of Iraq. The question of jurisdiction in the province of Al-Muthanna, in which a 29 year old man was shot dead by a Dutch lieutenant for failing to stop at a checkpoint in the middle of the night, will be extremely hard to decide following Article 1 – but following the non-existent rules of a hidden document. What Eadie was claiming, in fact, is that extending jurisdiction of human rights law to a military deployment – even sanctioned by the UN, again, following the invasion, not sanctioning the invasion – would be a deterrent to future peacekeeping missions. Making the public, direct and almost irrevocable decision to extend responsibility to the members of a military coalition for their actions against civilians and property on the ground would make member-states less likely to cooperate in the future. In short, Eadie is stating the following: if we engage responsibility in military actions, no member state will ever submit to the rule of law anymore. The end justifies the means; regardless of the fact that the UNSC Res 1483 never, never granted immunity to any member state of the CPA:

Calls upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;

International law is not suspended regardless of the “principled importance” of the mission carried out by the US and the UK in Iraq, despite Eadie’s claims; to quote one of the judges in the Hassan v United Kingdom hearing, “human rights law is not rhetorical”.

As several cases related to unlawful detention, torture or death occurring in Iraq during the invasion and the occupation phases find their way through the Court, it is important to remember that warfare is not a lawless, chaotic and messy state of affairs. It used to be, at a time when imperialistic thirst was unshackled, when legal accountability was reserved for deserting troops, when martyrdom was enviable, and when power ruled everything, relegating equality, freedom and security to second-level aspirations that would never grant anyone the territory or the money that were asking for. The Geneva Conventions were born out of what a former professor of mine once referred to as “rivers of blood and iron”. Although many of our contemporaries are now decrying the very concept of a “just war”, as they attempted to regulate the course of warfare, it would behoove us to keep in mind that we have regressed and marched backwards to a point where the laws of war are merely words carved into stone for us to feel safe and secure at home, but never actually enforced in the reality of the various battlefields – declared and now more and more often undeclared – around the world. Unless we re-affirm our collective and unequivocal commitment to the laws of war and international humanitarian law – and, of course, international human rights law – the immorality of the rivers of blood and iron will become the non-exceptional circumstance affirmed by the respondent governments in this case. If the occupation of Iraq does not pass the test of exceptionality, we have achieved, with this sorry state of affairs that has not seen an end for the Iraqis, war as political normalcy.

Two things are to take away from this case, that will sadly remain anonymous to most because little ink is shed over assisting states in Iraq; even less is mentioned about the countless daily casualties that we have learned to assume are the regular and casual toll of war. One, that unless we abide by a culture of judicial activism in which the transcendent politics of international cooperation in counter-terrorism and warfare do not trump the rule of law, and the unalienable rights we have worked so hard to enshrine, we will lose more and more rights by the minute, and a culture of secrecy and classification will ensure that we are never vigilant. Two, that accountability and responsibility are never a deterrent in peacebuilding, peacekeeping or humanitarian action. They are not mutually exclusive, and were never meant to be. There is no justice without accountability; there is no liberty without responsibility; and there is definitely no permanent security unless we empower transnational and supranational bodies with the possibility to judge states and the members of their leadership for the actions they have taken in our name. Per the applicant’s counsel:

Jaloud wasn’t suddenly hit by a deadly object falling from the sky, while in his own country, under his own government. He was deliberately shot at, for the reason that he had not timely complied with the orders issued by the Dutch army. (…) Bullets themselves do not create jurisdiction, it is the firing of the bullets that express authority and control; and the responsibility that comes with it.

This is the principled importance.

“We need the powers and the resources to expose the truth”

David Anderson QC (left), independent terrorism legislation reviewer. Ben Emmerson QC (right), UN Special Rapporteur on human rights while countering terrorism

On Wednesday, March 26, the Joint Committee on Human Rights (JCHR) convened on Westminster with the heaviest agenda of the parliamentary year so far – scrutiny of human rights compliance with counter-terrorism laws, protocols and their application. Following just  a week after another committee (Home Affairs) took great paints to summon Sir Mark Waller over GCHQ activities – and concluded that the little if any scrutiny granted to intelligence activity and data collection was far below a democratic threshold – the JCHR intended to make an inventory of the most pressing issues facing the human rights community in regards to counter-terrorism laws in the UK, enforced domestically and abroad. Present where David Anderson QC, an amicable, straight-forward and honest reviewer aware of his possibilities and difficulties as independent reviewer of terrorism legislation; and the both ubiquitous and far too rare Ben Emmerson QC, Special Rapporteur on Human Rights while Countering Terrorism.

As the UK slowly emerges from the deep slumber induced by the shock of the Snowden revelations, and intends to bring forward a semblance of a healthy democratic debate surrounding the overwhelming powers granted under its anti-terrorism legislation – from Parliament-embraced measures to unchecked use of executive power – this hearing was more formal that the Home Affairs’ submission to Sir Mark sought to be. Anderson and Emmerson, both tasked with a position that requires more than annual reports and evidence submission, highlighted not only the domestic inconsistencies of counter-terrorism legislation both in regards to constitutional safeguards but European legal compliance, but the international implications of the UK armed forces abroad – and even more to the point, the UK collusion with the US drone war.

Both Anderson and Emmerson were asked, as a preamble, to identify three key issues arising from abuses of counter-terrorism legislation – and both agreed on all three, their pressing need to be addressed, and the importance of a legislative scrutiny. Not respecting their own order, this write-up of the hearing seeks to re-affirm the basic principles of human rights compliance in counter-terrorism activities. Despite the current climate and the domestic policies seemingly asserting that the two are mutually exclusive, that conditions of necessity and proportionality involve derogations, and that national security imperatives supersede all – Anderson and Emmerson were both unequivocal in the belief that unless regular scrutiny, legislative and judicial review, and transparency prevail in a democratic country seeking to combat the extremely real of terrorism, abuses would be just as well shared by the nation-state violating the principles it had originally vowed to uphold.

Definition of terrorism

The question arose in the context of the Miranda v Home Secretary ruling in February, in which it had been effectively denounced and illustrated that section 40 (1) (b) of the ATCSA was too broad, too vague and unchecked to be efficient and free of possible discretionary, discriminatory abuses. As Emmerson remarked, the UK’s situation in defining terrorism – or failing to appropriately do so – is hardly unique. Many states, most of them being western democracies grappling with more or less open conflict in MENA or South East Asia, have definitions of what constitutes terrorism that are adaptable, subjected to interpretation, often not legislative. Anderson noted that he intended to revisit the definition incorporated into the ATCSA, if only in the light of the Miranda verdict – although the High Court ruling only emphasized that this became necessary, as opposed to shedding a light on an issue no one addressed. Continuing, “in the old days, terrorism was simple”, referring to the usual and perhaps now obsolete decision that terrorism was an act of violence perpetrated in order to achieve a certain political aim. The definition of ethnopolitical terrorism, a type of conflict Northern Ireland declared for decades, may no longer fit such a clear-cut bill: what has become a political means to achieve? Is the goal of the political action the strict act of self-determination, or can wanton destruction (of both property and persons) be considered terrorism? Should it be foreign or domestic? Should be carried by an organisation or an isolated individual? In the attempt to cover all bases, 40 (1) (b) covered, in fact, all bases, even those that perhaps should never be criminalized to the full extent of the overreaching powers of couter-terrorism legislation.

Ben Emmerson

Maybe more to the point – and this was said as an aside, despite its importance – a broad definition of terrorism could apply to state actors as well as it could to organisations and individuals. Emmerson:

This definition (…) criminalises conduct too broadly. The purported safeguards against abuses can’t be used against executive orders, that remain unchallenged. If you apply this definition, it could apply to British armed forces overseas.

Although it remains quite unsure as to how many eyebrows were effectively raised following this statement, Emmerson continued on the difficulties of applying a terrorism charge ex post facto. “This is not consistent with our constitutional principles”, he concluded, which will later be raised once more in the evolution of the legal context of counter-terrorism.

What was at the core of the Miranda case, indeed, was the extension of counter terrorism legislation to journalism – and the fact that carrying material that could be deemed harmful to national security; knowing, carrying, transporting, or transferring information deemed harmful; and publishing said information is now subjected to a terrorism charge. If journalists have now become a preferred target for outlandish counter terrorism laws that are only a front for clearly criminalizing dissent, the goal of extending these powers – which include prolonged detention, seizure of property, prolonged interrogation often as a result of long standing surveillance – to journalists, protected by the ECHR, the ICCPR and domestic mechanisms of press freedom, has a dangerous aspect that has forced one member of the JCHR to ask both barristers if journalism, and being a journalist, should be defined in order to create a framework that would escape the claws of counter-terrorism legislation. But being a journalist is not simply a profession on a card, not simply a career; it is the act of researching information and publishing it. In the digital era, an individual that may not necessarily be a career journalist, would not necessarily identify as such, or would not be hired full time and under contract by a newspaper organisation, can indeed act as a journalist and publish as such. Those individuals also deserve the protection of Article 10, and hold the right to a public interest defense.

Emmerson did not mention the Johannesburg Principles; instead, he referred to a more recent convention – principles laid out that goes through both domestic and comparative law in order to provide the best media protection possible, as well as enriching the legal mechanisms and recourses for whistleblowers… including those engaging in unauthorized disclosures. It is of Emmerson’s “robust view”, as he puts it – which may be robust in a vacuum, but necessary in the context – to foster and favour an environment in which the media plays a role of governing accountability and providing a healthy debate in the name of public interest. If the question of transparency has popped in a few times during the short hearing, it has however made a lasting impact – Westminster has now effectively held two parliamentary hearings during which observers, national, domestic workers in different fields, have assessed the Snowden disclosures not only as being in the public interest of the United Kingdom, but also having a much broader, international scope – which forces the national government in this situation, not only to address its own population in regards to the domestic spying apparatus in place, but to answer to the duties and responsibilities each nation has toward the others with which it engages.

Glenn Greenwald after finding out about Scotland Yard’s “Ports Circulation Sheet” related to the arrest and detention of his partner, David Miranda.

(If the Snowden revelations damaged more than two governments’ abilities to be trusted by their own population, we may not know in the immediate; US journalist Jason Leopold, who has filed a Freedom of Information Act (FOIA) request for a DIA document supposedly reporting on the “grave damage” the Guardian publication would have caused has been met with an “exceptional circumstances” excuse, seeking additional time to process his request. Considering the discourse on the so-called lethal effects of the NSA disclosures at home and abroad, one would be under the belief that the DIA would want this report out there, for everyone to stop considering Snowden a hero. Alas, this is not the case; and the notion of public interest in the face of grave human rights violations remain.)

Anderson, who has had first hand experience in observing press freedom and its restrictions elsewhere while on a mission for the Council of Europe (CoE), has reported that instances of restrictive definitions of what constitutes journalism and who can be considered a journalist, with the legal protections attributed to the title, more than often led to press freedom violations. He referred to the Levison case, another ominous jurisprudence for the United Kingdom. Although Anderson’s point was brief, if his intent was to suggest press freedom ought not to be restricted on matters of principle to avoid civil liberties violations (as opposed to restricting them for opaque national security matters), it was very well conveyed. The concerns raised by the JCHR was not in the strict and immediate future of the Miranda ruling, which is still under ongoing litigation, but just as dangerous and pervasive chilling effect it has on freedom of expression, opinion, and access to information. Emmerson, who never sought to wax poetic and engage in rhetorical battles of sorts on political linguistics, stated that national security was in fact used as an excuse to intimidate and silence the press. This goes hand in hand with recent declarations by UN Rapporteur Frank La Rue on the chilling effects of prosecution of whistleblowers. Anderson, who explained that national security was “notoriously undefined”, took issue with unquestionable, unchallenged and unscrutinized executive orders – as well as the Royal Prerogative – which, as a terrorism reviewer, leaves those unilateral decisions outside of his purview. It became clear at this point of the hearing that a legislative review of counter-terrorism, powers granted by Parliament and possibility to curtail, democratically, exceptional powers granted to the executive, could be what the UK – and by extension, the US – need.

CIA rendition program

A long-lasting thorn in Ben Emmerson’s side, the release of the Gibson Inquiry echoes the current theater drama on the other side of the Atlantic, as Sen. Feinstein struggles with the CIA, her own demons, and getting the votes to hypothetically release the CIA torture report. The Gibson Inquiry, named after Sir Peter Gibson, tasked to investigate the role of British intelligence forces into the CIA torture program, has notoriously been stalling for years. Then transferred to the Intelligence Services Committee (ISC), David Cameron, as a campaign promise, sought to take it away from Lord Gibson and handing it out to the ISC. He famously said, in 2010:

I do not think for a moment that we should believe that the ISC should be doing this piece of work. For public confidence, and for independence from parliament, party and government, it is right to have a judge-led inquiry. That is what we need to get to the bottom of the case. The fact that it is led by a judge will help ensure that we get it done properly.

A statement made on December 19, 2013 and released to David Cameron said the report concluded that matters needed “further investigation”. However, the ISC has been heavily criticized for failing to conduct proper oversight into the activities of intelligence services; in this case, the only released information concerned the MI-6 collusion with Gaddafi, which resulted in the rendition and torture of two Libyan opposition leaders in 2004. Handing the Gibson inquiry to a committee that lacks powers and resources to conduct a truly independent and thorough inquiry has been perceived by members of human rights groups as a willingness to whitewash the activities of the MI-5 and MI-6. As the ISC reviewer himself, Sir Mark, proved at his own hearing last week, the reviewer has little to no power over GCHQ; is massively understaffed; does not possess the power to compel evidence or summon witnesses; any evidence provided will be heavily redacted if ever possibly released at all. Emmerson, who expressed his frustration over the procedural limitations of the inquiry over and over again, re-affirmed the need to absolutely lift any roadblocks standing before the ISC “so the Committee can do its job”:

Individuals concerned by the inquiry boycotted it – but those who committed crimes need to be exposed. The Committee needs to have the powers and resources to expose the truth.

When asked if the ISC would ever face a conflict of interest in the conduct of a review that is neither legislative nor judicial, Emmerson expressed a commitment to oversight that is refreshing in an era of hyper-classification and constant executive-led belittling of calls for transparency. The Rapporteur then made a statement that sounds like stating the obvious, a truth that many democratic regimes may have held as self-evident, that is, until someone blows the whistle on works behind the scenes: that oversight is a traditional mechanism in advanced democracies. It is the one tool of accountability that can be relied upon especially when exercised by the very representatives of the people (legislative) and/or by an absolute separate branch of government (judicial). Only a lack of oversight, or a demonstration of powerless or virtually pointless oversight can reveal that separation of powers or excessive executive control has undermined the constitutional principles of society. As to whether any inquiry, inquiry report or conclusions should lead to prosecution, Emmerson believes that a strong judicial component to an inquiry could be an asset to conducting an investigation into intelligence services – as the judicial hand might be seen as stronger and less subjected to influence.

In light of Sir Mark’s testimony – which, again, he performed extremely reluctantly – the issue of transparency not only in intelligence itself, but in the conduct of oversight was raised. Although both Emmerson and Anderson mentioned the concept of “responsible journalism” earlier in the hearing, the necessity for information and the right to truth was once again made in front of a legislative body (emphasis mine):

It is always difficult to decide [ on release ] when dealing with sensitive information, to decide if privacy is justified. But what the committee is tasked with, parts are capable of being held in public. All that can be safely in the public domain should be in the public domain.

Unmanned aircrafts, targeted killings and undeclared battlefields

It was surprising to hear members of the JCHR being surprised that the use of drones made Anderson and Emmerson’s top three counter-terrorism issues list. Following an extremely brutal yet absolutely necessary report three weeks ago, which seemingly went half unnoticed even in the list of proposals it laid out in its conclusion, Emmerson provided the committee with what Anderson later referred to as a “masterclass on drones”. No stranger to their use in undeclared battlefields and the massive human rights violations they committed – pre emptive killings, unsanctioned use of military force, civilian killings and the absolute classification over their intelligence collection methods, their trajectory, and little known about their operating bases, it was no wonder that Emmerson’s tenure at the UN would prominently feature his lengthy field research in Pakistan and Yemen in order to amass the information that no one else would release to him, despite his position, that one would assume significant enough to warrant cooperation.

Alas.

Know Your Drone

Emmerson identified four key concerns, which he outlined in concise but harsh terms:

1) this is a 21st century weapon designed for asymmetrical armed conflict. As a counter-insurgency tool, which is what it is branded to be, it is of very little use and effect.

2) the Committee was right in saying that with the technology at our disposal, and the capacity to place suspects under 24/7 surveillance, it is in fact possible to protect the right to life closer to a zero-collateral damage than ever before – tools of precise targets, even more surgical strikes, and threat removal. Instead, the use of drones have illustrated reckless endangerment, and have destroyed said right to life.

3) Most of the difficulty that arises from the counter-terrorism and human rights study of the use of drones is that they often operate outside of the theaters of traditional armed conflict. Their constant hovering over Yemen, Pakistan and Somalia, nations with no declared war against the US or the UK, force precedence in areas of international law where there is nothing even remotely close to a political or legal consensus.

4) Drones are operated by the CIA.

Presenting this quote without further comment:

I don’t know who originally thought it was a smart idea to hand drones in a campaign of waging war through the air to an organisation bound by the rules of neither-confirm-nor-deny. (…) I’d rather give MI-6 a fleet of aircrafts and let them go off and do whatever they needed to do.

The complete lack of transparency even in answering simple questions from journalists and lawyers is what makes the CIA such an unpractical and dangerous organisation to direct and lead unmanned aircrafts – remotely based pilots distanced and detached from the battlefield, the realities of the insurgency and the bloodshed of the bombs they let off. The historical culture of classification and secrecy held by the CIA, the topic of which is often source of heavy-handed satire and conspiracy theories is an issue in and of itself. Abuses do arise, but in the hands of the CIA, they are effectively removed from any tool of accountability for the civilians affected by their practices; the wounded as well as the killed. The effort to transfer the direction of drones from the CIA to the Department of Justice (DoJ) was a step in the right direction, but hindered. Emmerson however noticed that since John Brennan took over as head of the CIA, Pakistan enjoyed a period of relief from the death machines. (Sadly, this has not proven true for Yemen).

Picking apart Emmerson’s new report draws the eye on his rhetorical questioning on a proposed change of international law (!) and accountability systems of counter-terrorism (!!) to fit the current and evolving framework of the counter-terrorism and counter-insurgency methods the US and UK are practising in the name of their endless War on Terror. Reducing it to the simplest possible question due to the nature of the hearing and its limited duration, Emmerson was asked to answer whether war should be redefined. This, however, was not rhetorical. Stating that this is a complex issue – and I would argue, the most complex international criminal issue of our time, one I have been working on for ages – there is no consensus among states, or even among lawyers. The Geneva Conventions are and should remain the guiding principles of the law of warfare; but the nature of conflicts themselves have evolved far away from our traditional and historical definition of what constitutes an international armed conflict. Most of the battle zones, these days, are asymmetrical battlefields – meaning, in broad and simple terms, a nation-state against a more or less borderless organisation. Henceforth, the targeted laws of international humanitarian concepts are harder and harder to apply. Jurisdiction is an ongoing concern in matters of judicial accountability. Classification is the biggest fear in matters of political accountability. If counter-insurgency and counter-terrorism are often confused in media coverage, it is because the definition of what constitutes a legitimate military target not only varies according to the country in which the fight is taking place, but also the rules of engagement (for armed forces); the duty handbook (for private military contractors), and legislation once one policy expires or there is a change in administration. The questions Ben Emmerson asked at the end of the report, which asked states involved in the War on Terror to not only answer his calls for transparency and release of information, will be subjected to a vote at the United Nations shortly, recommending the establishment of a committee that would hear states and their own national, domestic and political vision of counter-terrorism, human rights compliance, and the legal systems of accountability they would recognize.

As I said, Emmerson’s report was a brutal read; and if some states decided to play the game and submit themselves to Emmerson’s questioning – the future will tell the degree of truthfulness involved – the Rapporteur was quick to point out that the UK was “not terribly keen” to submit themselves to the Human Rights Council. In itself, it is immensely telling.

Home Secretary Theresa May

Citizenship deprivation, executive powers

When mentioning the awfully limited and comically useless powers of Sir Mark Waller, it was unbelievable to conceive that David Anderson would face oversight issues. Indeed, his body of work as a reviewer is comprehensive, transparent, available and accessible. However, in the recent decisions made by the Secretary of State and Home Secretary, regarding immigration, deportation and revoking powers, Anderson admitted he had no review powers – those fell under immigration ministry oversight. However, one concern was a power that had been long lost and was somehow revived in the last twelve months: revoking a passport. Since April 2013, 14 passports have been revoked under powers granted by the Royal Prerogative, another unilateral executive power not subjected to review. (We remember activist Moazzam Begg’s passport being confiscated upon return from a humanitarian trip to Syria, not long before being arrested and detained by the anti-terrorism unit of Birmingham Police).

But again, the bigger picture remains the same: it is an issue of transparency and accountability. Theresa May’s citizenship deprivation scheme, detailed here at length by journalist Aviva Stahl, have obscured motives yet terrifyingly clear results. Left vulnerable, without diplomatic assurance and the protection of the right of abode, statelessness effectively makes individuals vulnerable to gross human rights violations – historical instances in the previous centuries having led to the 1954 Convention on the status of stateless persons. Although the power of revoking citizenship is a prerogative of any member state, the necessity to ensure that the individual is not only entitled to powers of appeal of the decision but also has another citizenship or state willing to grant asylum once the decision made should be a duty incumbent to any state party to that treaty. Emmerson, falling into the footsteps of a House of Lords hearing last week during which the scheme was debated, in the light of two individuals murdered by a drone strike directly following the revoking of their citizenship, reaffirmed that international law had to prevail in a climate of perpetual and ubiquitous conflict during which individuals are not to be left without possibility of refuge. However, the follow-up question was met with concerns for the security of the United Kingdom, not an appreciation of the human rights of individuals, regardless of their alleged or confirmed criminal status. Emmerson, again:

Those singled out for a crime that is wholly public – on notice from the government and the services that watch them – are those posing the least threat. This is a radical power, and it makes one wonder what someone did to deserve such a measure.

Anderson, who has consistently and abundantly worked on TPIMs, was happy to report there were none enforced currently; there should be an emphasis on prosecution in matters of criminal wrongdoing, as opposed to executive orders in matters of security. Are the TPIMs really that efficient in terms of counter-terrorism prevention? Are executive powers a deterrent to criminal activity? What can be a deterrent? Wouldn’t the appropriate behavior to work on the roots of terrorism – explained and detailed in the UN 2006 global counter-terrorism strategy – as opposed to immediately and profusely rely on executive powers, unchallenged and unchecked, to provide national security?

Crux of the matter remained that scrutiny of executive powers and executive services – intelligence and use of military force in matters of counter-terrorism – require that the other branches of government obtain at least equal power to the executive as opposed to being subjected to disclosure exemptions, classification refusals, and clearance denials when accessing material, evidence, and individual that would facilitate the conduct of their work. Anderson suggested that members of Parliament engaged in legislative review should be granted security clearance to access GCHQ / MI-6 material – or at least, be treated as if they did. “It is the only way we can debate information in a meaningful way”, he said, in yet another significant effort by a terrorism specialist to emphasize the necessity for clarity and transparency in the healthy course of democracy. Emmerson concluded that oversight was not working as it well as it should be, but thankfully, we could rely on a momentum, at international level, to create direct obligations upon member-states to abide by human rights provisions in the course of intelligence gatherings and counter-terrorism.

And we hope it doesn’t stop.

 

Career opportunities: intelligence services oversight

After much back-and-forth between the Parliament Home Affairs Committee and the Intelligence Services Commissioner, Sir Mark Waller, a little less than an hour was granted to explain whether the activities of British intelligence – MI-5, MI-6, SIS, but in this case, more specifically GCHQ – were appropriately kept in check. Little attention was given to the hearing; even less was awarded to the extremely tedious and tense context in which Sir Mark arrived at Westminster. This is not obscure and somewhat opaque British parliamentary procedure; it is relevant reflection of the difficulty to keep intelligence services, especially outsources to private companies such as GCHQ, under legislative review. On both sides of the pond, the extreme difficulty of bringing mass surveillance activities to review can only show the premises of a constitutional crisis. If Dianne Feinstein made an impassioned speech on the floor of the Senate calling for the CIA to stop spying on her, unleashing a circus of denial, double-speak, entitlement, and complete irresponsibility, the UK has managed to hit the brakes on the unfolding drama. But it wasn’t easy.

Keith Vaz, chairman of the Home Affairs Committee, MP for Leicester East (Labour)

Intelligence services oversight before Parliament: “inappropriate”

Before diving into the hearing itself, the incredible quotes it brought us, and the tenacity of the members of the Home Affairs Committee, let’s remember that initially, Sir Mark did not want to testify. He repeatedly turned down the polite invitation to come to Westminster and discuss his position – the Intelligence Services Commissioner (ISC) has an oversight mission, which is limited to ensuring GCHQ and MI-5 do not overreach the powers granted to them by Parliament, are not in breach of UK law, and act in proportion to a perceived or identified threat. The purpose of the hearing was to determine whether the ISC had detected any wrongdoing on the part of GCHQ, especially in the wake of the Snowden leaks. Sir Mark, at the end of February, sent a letter to Keith Vaz, the Chairman of the Committee, to explain he believed it was “inappropriate” for him to speak before Members of Parliament. Keith Vaz, who is starting to schedule a certain number of hearings on the issues arising from UK counter-terrorism laws, was unamused:

The Intelligence Services Commissioner plays a vital role in keeping under review the way in which the Home Secretary and the intelligence services use the powers which they have been granted by Parliament. This function was conferred on the  Commissioner by Act of Parliament, and Sir Mark must be accountable to Parliament for the way in which he carries it out.

Indeed, he must. In a healthy democracy, where the separation of powers is well enshrined and never contested, powers granted by Parliament to an executive power should be under the scrutiny of said Parliament. There is no escaping the decision made by Keith Vaz today, who several times made it clear that the political climate and legal implications of GCHQ ran amok called for extraordinary measures. A couple of weeks before the clash between the ISC and Parliament, Ed Milliband, leader of the Labour party, had called for the complete overhaul of intelligence services in the UK, referring to GCHQ as an “unaccountable” power:

I already believe, and this is what my Labour colleagues have been saying, that there are clearly changes that are going to need to be made in relation to the intelligence and security committee and the oversight it provides (…) The issue of oversight of the intelligence services and the way they work is definitely part of this agenda. My commitment is that we do need to look at these issues, they are important.

But a mere week later, Sir Mark sent the following to Vaz:

I am afraid I remain of the view that it would not be appropriate for me to do so. As my office informed you previously my function is limited to oversight of the intelligence services which is within the remit of the Intelligence and Security Committee (ISC) who as was explained have broadened their inquiry into privacy and security to consider the “appropriate balance between our individual right to privacy and our collective right to security”. In any oral evidence before your committee I could not go further than anything which is in my open report. The position is quite different before the ISC who are able to receive a wide range of sensitive material. The fair and appropriate place for questions to be put to me is before that committee.

The reasons Sir Mark outlines as a motive not to testify before the Home Affairs Committee are the exact same ones his presence was actually kindly, and in accordance with protocol, offered.

As a result, Vaz summoned Sir Mark. This is an unprecedented event in the history of this parliament. Vaz said the Committee was “disappointed” with Sir Mark, but believed his presence was more than necessary. Turns out, summoning the Intelligence Services Commissioner was also directly proportionate to the perceived threat that GCHQ poses to British civil liberties.

Sir Mark Waller, ISC, yesterday at the hearing. a former Lord Justice of Appeals, he retired from the bench in 2010.

The hearing

Set on Tuesday afternoon, March 18, the hearing was set in three parts: the testimony by Sir Mark, that of Nick Pickles and Rt Hon David Davis MP, from Big Brother Watch; and Brokenshire, the Minister for Immigration. When Sir Mark sat down, he appeared defensive, obviously there against his own free will. Vaz, respectful but extremely acute in his commentary, let every member express themselves on the issues that were dear to them. A broad political spectrum was represented; yet the concern was universal. Aware of the extent of what Snowden revealed, and the constant stream of newspaper coverage on his infamous files, how can the UK pretend there is such a thing as effective and efficient oversight? And if so, how could it be demonstrated?

The difficulty resided in not making this hearing an indictment of Sir Mark, whose testimony revealed but one thing – that the system is not adapted to the powers granted to intelligence; that he does not benefit from the necessary resources; and that he might, in effect, be complacent as to the activities of GCHQ. Sir Mark brought figures – in 2013, he was handed about 1,600 warrants to review. His job description, he stressed, was not to green light or obstruct: he is reviewing the necessity and proportionality of the action taken. Out of those 1,600 warrants on his desk, only 200 went effectively through his hands and were subjected to actual oversight. Basic math: that’s approximatively 6%. Vaz, firing questions rapidly, calling Sir Mark on any possible inconsistency, was not to be toyed with: several times, the ISC said the criticism thrown at him was “unfair”. In his view, the intrusion of privacy – as far as he could review – had been justified. Things took a rapid turn to the surreal.

Sir Mark: I went down to GCHQ, I went there…

Vaz: How many times did you go?

Sir Mark: Six times in three years.

Vaz: And that’s enough, twice a year?

Sir Mark: Twice a year, yes.

Vaz: And who did you see, at GCHQ?

Sir Mark: I saw, erm, I saw, he – I saw the number two of GCHQ.

Vaz: And what did you say?

Sir Mark: We had a conversation, and…

Vaz: And you were satisified?

Sir Mark: I was satisfied, yes.

Vaz: Is that how you satisfy yourself, by having a discussion with GCHQ? That was enough? You sat around a table, had a chat, and there was no circumventing UK law?

The issue of holding GCHQ accountable was brought forward on two points: one, whether there was an actual mechanism that made GCHQ’s “cases” – their justification for privacy breaches – themselves submitted to scrutiny, or whether the arguments brought forward by the agency could be relied upon to be truthful and trustworthy. Second, the relationship Sir Mark himself entertained with the heads and officials at the intelligence services, a question brought forward by Blackwood, who expressed at concern at the cordial, maybe even friendly tone he seemed to have with his colleagues at Whitehall. Maybe some distance would be necessary to properly appreciate the work of intelligence services and whether their work is, in its entirety, brought to review, in a manner that is compelling and independent.

Blackwood: How would you describe the relationship you have with the services you oversee?

Sir Mark: I know them quite well, I do.

Blackwood: Would you say you have sufficient authority?

Sir Mark: Well, yes, I do.

Blackwood: With the number you gave us, the little number of cases you actually oversee, compared to the wide range of services?

Sir Mark: You know, they have to take into consideration the fact that, for every case they submit, there is the possibility of a judge looking at it.

Which, for the number of cases that Sir Mark is effectively looking at, hardly constitutes a deterrent.

GCHQ headquarters in Cheltenham, England, where you can apparently go and have a chat (if you’re Sir Mark).

The question of oversight is not a simple judicial one. It boils down to the very concept of trust, that must exist in-between state actors, but also, as members of parliament, must reside between the Committee and the executive, so members of the public feel reassured that there is a working system of checks and balances that ensures them protection of the law is always present. Winnick, as for himself, could not hide his disdain and contempt for GCHQ; he was rocked by the Snowden leaks, as many members of Parliament were, and believes the culture of secrecy well extends to members of government – and that, for every case that is officially submitted to Sir Mark, many may not even be sent for review at all. Ellis himself was more direct:

Ellis: Do you look at specifically selected warrants, or do you receive a random number?

Sir Mark: You can look at them specifically if you want.

Ellis: How do you know you are looking at all the cases open by GCHQ?

Sir Mark: Ah, this is a question I get all the time.

Ellis: So what’s the answer?

Sir Mark: Listen… It is a big… Everyone knows what everyone else is doing at GCHQ… And if… if it could happen, it would be a huge conspiracy.

A conspiracy, by definition, is something that is hidden, that remains in the shadow, that has to be purely speculative due to partial or complete lack of information. Thanks to the Snowden  leaks, explained Winnick, we know those are no longer a conspiracy, but actual facts. Winnick, a senior member of the Committee, said he took the information released by the Guardian “very seriously”: “There was no investigation. There was no probe. You took their word. I took the Snowden report very seriously – there should be an investigation.” Ellis insisted at length on the respect he had for Sir Mark and his position; for the utmost necessity of an oversight commissioner for intelligence services; for the complexity of his task when he seems to be charged with the impossible. But the problem is, Snowden opened a door into the massive double tanker that is the intelligence services in the UK, and now the information will not stop coming out, one way or another. He raised more concerns: “We keep hearing reports of mass shredding at the Metropolitan Police, of documents disappearing, and we want to make sure you are not by-passed.” At this point in the hearing, it was hard for Sir Mark not to feel like the responsibility for GCHQ abuses rested on his shoulders, for overlooking the immensity of the futuristic plot of the NSA/GCHQ domestic and foreign intelligence capabilities. It seemed that, as he enunciated that the ominous Section 94 of the Telecommunications Act was not under his purview, that he simultaneously admitted his powers of oversight were in essence and in effect of extremely and dangerously limited scope.

Flynn then spoke up.

Flynn: We have been misinformed. We have been lied to – in Iraq, in  Afghanistan, and on the CIA rendition program. There is a record of this misinformation. You seem to be satisfied – but I, as a Member of Parliament, I have been lied to; mistakes, or complete lies. I think you have been complacent.

Sir Mark: It’s unfair.

Flynn: But who is supposed to inform us then? Who can we believe?

For all his faults in domestic policies, Ed Milliband however hit the nail on intelligence oversight – a system of accountability is the only way to restore a democratic balance in government, between powers granted by the executive in application of its power, and by the legislative in representation of the population’s need for security, safety and law enforcement. Any abuses must be held under strict scrutiny by the other two branches – legislative and judicial – so not only would the abuses be prosecuted, but the laws themselves could be modified or restricted in light of dysfunction. That the very clause making data surveillance possible is taken  away from the oversight of the ISC is, in itself, an abuse of power, a legal – but not lawful – means to ensure that the executive power is not entirely kept in check, and that some agencies will be left to keep running and functioning even if the government changes, modifies, or is somewhat suspended.  Flynn’s last question may seem a little naive, perhaps a little childish. But the concept of trust between those entrusted with representing the interests of the population and those with the power of protecting them is the only safeguard in a system that survives on friction and tension. Without oversight, and without the possibility for a Committee such as this one to access, hear, and question a man in the position of Sir Mark, the legislative and judicial branch are merely decorative in the fight against terrorism.

David Anderson QC, the Independent Reviewer of Terrorism Legislation in the UK, has followed the Sir Mark / Keith Vaz relation closely, and his commentary can only be taken in so the testimony brought forward by Sir Mark revealed the gripping, indeed, necessity to overhaul the ISC, its prerogatives, its powers, and most importantly, its staff. The ISC is created  by RIPA 2000, which Shadow Home Secretary Yvette Cooper denounced as being insufficient and not up to date on the recent and evolving challenges brought by digital privacy. RIPA was, in fact, written in 2000, at the same time of the very first introduction of the anti-terrorism act (ATCSA, also revised in 2001) and current oversight come from the Intelligence Services Act (ISA), dating back to… 1994.

Edward Snowden, NSA whistleblower, “in Putin’s Russia” according to Ellis.

Big Brother Watch, present in the second part of the hearing, reiterated the necessity to update, upgrade and adapt current oversight legislation to the actual capacities of GCHQ – capable of bulk data collection, metadata storage, extensive methods of developing and installing malware – that otherwise escape this obsolete system. It took several minutes and an extremely tense back-and-forth between Nick Prickles and Ellis to establish that the Snowden leaks were in the public interest; that they refused to see it any other way, and that they were, in fact, looking at provisions of the Human Rights Act to defend their position to fight against privacy intrusion (this provoked a little sneer from Ellis, which is unsurprising). If Rt Hon Davis MP seemed content of a recent meeting with Sen Feinstein, whose oversight powers he found “very robust”, both men were quick, concise, yet powerful by stating that none of the activities of GCHQ were in fact linked to deterring acts of terrorism or halting any ongoing plot. The justification for mass surveillance does not stand the test of oversight, they believe, and the UK would do well to transfer the debate on intelligence services into the more public sphere. And this conversation – to refer to Sir Mark and GCHQ, if there is to be a conversation around a table – between Big Brother Watch and the Committee revealed more than both sides probably expected.

Rt Hon Davis MP: Feinstein made the greatest speech in the Senate last week, denouncing CIA bullies. She provides robust oversight.

Winnick: She only went after the CIA once she found out she was a victim of the CIA. This is not “robust”.

Is there value into comparing the US platform on debating NSA and CIA activities into the UK? The US, much like the UK, was forced into this debate. It was thrown upon both countries upon revelations from a third party that, as Ellis said, “stole documents from his employers and fled to Putin’s Russia” (the reference to Russia being Putin’s and being Russia carried on for a certain amount of time, deflected by Prickles who evidently showed tiredness at having to assert this was way beyond the point).  There is no disputing the damaging status of the Snowden disclosures. But damaging to whom, exactly? To an image of brilliance and rule of law that was shining across the globe? To a self-created idea of unchecked but unaccountable power in a system purporting to be democratic? Prickles re-affirmed: the leaks were in the public interest. The knowledge they gave was invaluable.  Rt Hon Davis MP ended his part of the hearing:

Rt Hon David Davis MP: British people tend to be more trusting of their establishment. But this is changing. And that’s because of what we were told.

This is a statement released by Sir Mark in the month following the Snowden leaks, expressing his communications with GCHQ and his satisfaction they were acting appropriately.