I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

52187-622609-shining_bike

The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

the-shining-danny-sweater

Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

lloyd

Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

Advertisements

CIA torture and the Control Principle

Screen shot 2014-06-03 at 15.52.21

Portion of the report of the Gibson Inquiry, published on December 19, 2013. The Gibson Inquiry has closed document review in 2012. (1)

 

In 2010, he British High Court, represented by Lord Chief Justice John Thomas dismissed an appeal from the Foreign Secretary in the Binyam Mohamed case and addressed the issue of the UK intelligence services’ use of torture at the behest of the US War on Terror head on. At the time, this seemed a proper, relevant, and necessary illustration of the judiciary’s independence and its need to place executive authority under review. The UK had covered its counter-terrorism operations with a cloud of exemptions, derogations, and immunity since 2000. It went so far as amending laws to create new sanctions, using prerogatives as orders, classifying material which assisted in wrongdoing, and, in the case of the judicial branch, refusing to sit on the operations of a friendly nation-state on the theory that doing so would violate jus gentium—despite the government’s admission of “serious” violations of international law. The British High Court’s ruling was important then, but after the Gibson Inquiry into MI-5 / MI-6 collusion with the CIA closed in 2012, it is even more important now, when hypervigilance, hyperclassification, and multiplying extrajudicial orders give the impression that everything is out of our control, out of our sight, left thoroughly unchecked, and cannot be stopped.

The United States is justifiably focused on the circus-like saga surrounding the release of the Senate Select Committee on Intelligence’s CIA torture report. The very Senate Committee that created the 6,800-page report voted for its release, but a White House paralysed by the possible consequences of its release and a CIA unwilling to accept, reveal, investigate, prosecute, amend, reconcile, or apologize for its part in US torture still block and red-tape the report at every level. However, we seem to forget that 53 other nations were involved in the CIA’s rendition program. If supranational courts have forced some nations to face the reality of collusion and investigate the crimes committed by their leaders, others are in a permanent and affirmed state of denial. As for the UK, the CIA itself has acknowledged that its idea for world domination through torture could not have reached the heights it did without the help of Her Majesty’s most trusted agents. The pressure is on all the way through Westminster, and in the pages of the Telegraph.

Binyam Mohamed, from Ethiopia and UK national, detained at Guantanamo between 2004 and 2009. Here, upon his release. (via The Guardian)

 

The Binyam Mohamed ruling contains a lot that deserves a closer look, or at least another look, with the gift of hindsight. Ideologies, secrets, backdoors, and public acknowledgements—you can find it all if you address the Control Principle and uphold open justice.

 

Fighting secrecy in courts: PII certificates

Intelligence operations that touch on important foreign relations rarely suffer any disclosures. The few leaks that do happen are mostly unauthorized. Many are severely condemned, and almost all become a source of concern for both the subject of the disclosure, whose dubious actions are exposed to the world, and its source, who is vilified and criminalised. However, it is crucial to uphold the independence of the judiciary. The right to truth cannot take a back seat to foreign policy interests, especially in the face of gross human rights violations. Faced with the difficulty of ruling against a pressured and pressuring executive authority and the overarching need to address a case of torture so severe it involved at least four different sovereign states, the High Court weighed in on a conflict of principles that would define the legal battles surrounding the War on Terror: public interest versus lasting foreign cooperation.

1. Is there “uncertainty” in the US/UK relationship?

It is almost impossible to weigh the importance of the UK/US relationship while their intelligence cooperation agreement is still classified. UKUSA – born out of the 1944 “BRUSA Circuit” and famous for spawning the Five Eyes signals-intelligence alliance in 1955 – has defined a transatlantic partnership that predates the War on Terror, and even the Cold War. Seemingly intended to create a rapprochement between Europe and the US after World War II, UKUSA often isolates the rest of the continent to the benefit of a sprawling group of intelligence services —MI-5, MI-6, GCHQ, SAS—serving, aiding, and completely abetting the CIA in its activities overseas. It is preposterous to assume there is any sort of uncertainty in the US/UK relationship, but a legal decision is likely to make precedent if it somehow undermines the principles of secrecy and national security that currently define executive authority in counter-terrorism and military deployment. Such a ruling would undermine the common assumption that intelligence operations are the executive’s sole prerogative and that the judicial will defer to the executive in gauging their importance.

But the case of Binyam Mohamed proved that a need for judicial review was pressing, that the scope of the CIA rendition and torture program was so vast it could not stand to remain unchecked much longer. The pages-long ruling endlessly debates the hypothetical consequences of disclosing intelligence operations that led Binyam Mohamed’s detention at Guantanamo—the detention of a man who ceaselessly claimed to be innocent and suffered hell at the hands of agents never bound by habeas rules. Here is the core of the debate:

Making it “. . . clear that the US Government’s position is that, if the redacted paragraphs are made public, then the US Government will reevaluate its intelligence-sharing relationship with the UK with the real risk that it would reduce the intelligence provided. It was and remains (so far as we are aware) the judgement of the Foreign Secretary that the US Government might carry that threat out and this would seriously prejudice the national security of the UK.” (paragraph 87, quoting paragraph 62 of the judgement)

The Foreign Secretary asserted very clearly that the intelligence-sharing agreement is not necessarily based on a needs assessment and equality in providing information but is deeply rooted in complete codependence which he must protect above all else—including, it seems, from the judiciary’s authority over wrongdoing committed by services under executive power. In fourth judgement, the Court ruled that exposing the truth was one valid concern in a case that was arguably necessary to place in the public domain due to the grave violations it illustrated. However, the threat of the US turning its back on the UK due to a breach of trust by pulling out of UKUSA was an even concern than the condition of Binyam Mohamed and countless other victims of the War on Terror, from Kabul to Rabat, from Bucarest to Cuba. The fourth judgement made clear that executive interests supersede human rights law:

Whatever views may be held as to the continuing threat made by the Government of the US to prevent a short summary of the treatment of Mr. Mohamed being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the UK to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law . . . it must now be for the US Government to consider changing its position or itself putting that information into the public domain. (Para. 107)

Simply put, the consequences would be so grave to the UK that the Court refused to take such a responsibility and instead let the US decide whether to ultimately reveal—or maintain as classified—information in a case against a UK agency concerning UK agency wrongdoing and presented in a UK court of law.

US Secretary of State Hilary Clinton (l) and UK Foreign Secretary William Hague (r), July 2011 (Reuters)

This is the extent of the Control Principle. It is so unbelievably central to the mere survival of the imperialist island that it is willing to sacrifice fundamental rights and detach parts of its democratic principles in order to maintain core agreements that are essential to maintaining the executive authority in power. UKUSA is more than an intelligence sharing agreement; as its acronym suggests, it is an almost literal blood-sharing treaty on which the national security and foreign policy of the two most influential world powers is based. The fourth judgement made it clear that the Foreign Secretary would not risk weakening the UK’s life force just for some man whose identity was so unimportant that his alleged crimes barely warranted address in a court of law.

2. Is disclosure a breach of trust?

How much trust does the US and the UK vest in UKUSA, and what measures can hold operations created and carried out under its provisions accountable to justice?
According to the Control Principle, the country that provide information is responsible for its confidentiality, never the country that receives the information. If one end is closed, the other is open, by principle. In reality, however, this principle is often subject to political affiliations, bilateral agreements, and traditional respect for the classification and secrecy inherent to intelligence sharing protocols. A country that provided another with information might consider the receiving country revealing its methods, sources, or content a breach of bilateral agreements that could harm the vital foreign interests in the name of which the US and the UK have colluded on many recent foreign intelligence cases—the GCHQ/CIA case of a drone strike in Pakistan in Noor Khan v. Secretary of State, for example. LJ Thomas was right in asserting that, in matters of national security, the judicial branch defers to the executive, which is traditionally responsible for diplomatic, military, and intelligence decisions. However, the judicial also has a democratic right to check and balance powers granted to the executive—be they constitutional powers, like national security, or extraordinary powers beyond legislation in times of exemption, like counter terrorism—by intervening in time of wrongdoing. In this capacity, the judicial has the authority to place the control principle under review.

The difficulty in addressing the circumstances of Binyam Mohamed’s arrest, detention, interrogation, and torture lays with the fact doing so would reveal the working relationships between the UK and the US in the War on Terror. Weighing the confidentiality of intelligence-sharing protocols against the need for open justice, however, LJ Thomas carefully crafted what he referred to as “an exercise in judicial patience.” He detailed his very thought process based on questions of principle, on one hand, and previous jurisprudence justifying an extraordinary case of release and publication, on the other. The Foreign Secretary, William Hague, immediately submitted public immunity certificates in order to protect the confidentiality of UKUSA. Here, collusion between the UK and the US was more than an allegation; the court factually asserted it, with LJ Thomas himself referring to UKUSA, although not by name but by content, saying it was “no secret” that the text existed and that it was still in operation:

It is no secret—and indeed it has been an unbroken theme of the Foreign Secretary’s position—that there is a close intelligence sharing arrangement between the UK and the USA. If the redacted paragraphs do not themselves contain secret or intelligence material, and the intelligence-sharing arrangements between the UK and the USA are publicly declared, one may enquire why the redaction is necessary. In essence it comes to this: Unless the control principle prevails, the intelligence-sharing arrangements between the USA and the UK will be reviewed, and the following review may, not will, become less “productive” to presumably, the disadvantage of both countries, although I shall assume to the much greater disadvantage of the UK. The Foreign Secretary believes that such consequences will inevitably follow any contravention of the control principle, whatever the circumstances in which or the reasons for the court’s decision that it should be disapplied. The difficulty therefore arises from the control principle itself, and its application in troubled times.

Sir Richard Dearlove, chief of secret intelligence from 1999 to 2004, who recently made headlines for demanding more oversight of UK intelligence operations (2)

What LJ Thomas mentions may not be known conventionally or acknowledged officially, but it has been a constant in diplomatic relations for a long time, disseminated through conversations with journalists and in legal analyses: UKUSA exists, and both government have highlighted and perhaps even reinforced it in the “troubled times” that are the War on Terror. The control principle would allow the UK to breach UKUSA’s promises of confidentiality unless the Foreign Secretary could sufficiently prove that disclosure would be extremely damaging – not just the information itself, but the fact that a judicial court of the UK would release the information in its own sovereign right without the US’s prior consent. Jonathan Sumption QC, speaking on behalf of the Foreign Secretary, argued that such a disclosure would be “profoundly damaging to the interests of this country” and even “irresponsible”. As for the Foreign Secretary himself, in his Summary Grounds of Resistance to support his demand for public immunity, he never fell short of emphatic qualifiers:

. . . the claim was said to be “unarguable,” and the allegation that the UK government had been “mixed up” in, so as to facilitate it, the alleged wrongdoing (by USA authorities) is untrue”. It was averred that “no department or agency of the UK government was involved in the claimant’s alleged torture in Morocco and Afghanistan. Nor has the UK government done anything to facilitate the Claimant being subjected to torture.” The contention was effectively repeated in the Detailed Grounds of Resistance: “[T]he pleaded case on facilitation wholly fails.”

The Court refused Binyam Mohamed, who knew UK agents were present during his interrogation and may have facilitated his seizure, the right to access documents pertaining to his detention, in complete violation of open justice. Mohamed’s lawyers rooted their claim for disclosure of those documents—not only to the claimant but also to anyone having access to the ruling, which is everyone—in a 35-year-old principle in the case Norwich Pharmacal Co. Formulated in circumstances far different from the gruesome and harrowing complexities of the rendition program, that principle maintains that the perpetrator in a situation of facilitation, even involuntary, must cooperate in the course of justice:

If through no fault of his own a person gets mixed up in the tortious acts of others as to facilitate their wrongdoing, he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. . . . Justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.

What Norwich defines is not even collusion. It does not require intent and does not even demand liability from the third party. Still, it view disclosure as justified and part of the course of reparative justice. The Foreign Secretary’s response seems disproportionate. He did not wish to to protect the public from finding out that the UK collaborated in torture. Rather, he simply did not wish to disclose information related to the intelligence activities of another nation—even intelligence activities inflicted on the body of a British national. What is now a question of “vital foreign interest” darkens and becomes more ominous by the minute: it seems that preserving UKUSA is more important than the rules of law that bind the Foreign Secretary—not only in his position of governance, but, as LJ Thomas said, as any other litigant. If Norwich applies to a severe case of premeditated collusion resulting in gross human rights violations, and it surely does, then it reinforces the demand for disclosure. Redacted paragraphs related to the surveillance and arrest of Binyam Mohamed show that the UK did not “involuntarily facilitate” the actions of the CIA. Rather, the CIA was aiding the UK in apprehending a suspect they believed was a threat to the UK because they believed threats to UK national security also posed threats to the US. This is how Binyam Mohamed ended up in Guantanamo Bay:

(i) The SyS and the SIS were interested in (Mr. Mohamed) because of his residence in the United Kingdom, his connection with suspected persons in the United Kingdom, the period of time spent in Pakistan and Afghanistan, those whom he was said to have been with and the gravity of the allegations made against him at the time.

(ii) We have no doubt that, on the basis of that information, the SIS and SyS were right to conclude that [Mr. Mohamed] was a person of great potential significance and a serious potential threat to the national security of the United Kingdom. There was therefore every reason to seek to obtain as much intelligence from him as was possible in accordance with the rule of law and to cooperate as fully as possible with the US authorities to that end.

The problem is that gathering intelligence in accordance with the rule of law excludes the concept of full cooperation with the US authorities when it comes to terrorist suspects in the War on Terror. Continuing:

(iii) It was clear from reports that (Mr. Mohamed) was held incommunicado from 10 April 2002 whilst a series of interviews were conducted by the US authorities in April 2002, during which he had asked for a lawyer and had been refused . . .

(ix) By 20 September 2002, it was clear to the SyS that (Mr, Mohamed) was being held at a covert location (either by the authorities of the United States or under direct control of the United States) which was not a US military facility, such as Bagram. It is clear to us that they knew that he was not in a regular US facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the US authorities had direct access to information being obtained from him.

Aerial view of the Salt Pit, a CIA black site just north of Kabul, Afghanistan

Of course, UKUSA is not solely responsible for what happened to Binyam Mohamed and countless others whose rights were denied to prosecute the War on Terror. The CIA rendition program encompassed 54 countries, including the United States, all of which cooperated willfully and with the acquiescence of local authorities. To various degrees, all 54 work under intelligence sharing agreements similar to UKUSA. What makes UKUSA so special is the very specific nature of the diplomatic, military, political, and legal relations between the UK and the US—a deep entrenchment enshrined in an agreement dating initially to 1940. Each country has proved to be invaluable to the other. They are, in fact, almost incestuous. If current relations between the UK and the European Court of Human Rights (ECtHR) are more than glacial, the government can only halt the rule of law and judicial review of intelligence-sharing agreements using political and diplomatic protocols. The political normalcy of “vital foreign interests” regarding intelligence gathering and sharing are now even more important to the activities exercised and practiced by the executive of both nations involved in the bilateral agreement. The content of UKUSA is classified. Having been placed to the forefront of current conversation due to being the genesis of the Five Eyes program, UKUSA contains much more—and the very fact that it exists may in itself become an objection to the understanding that intelligence principles are sacred and far beyond the concept of public interest.

The language that the Foreign Secretary used to justify his public immunity certificate may be vague in rhetoric, but it is vastly telling in its interpretation. In paragraph 45 of the ruling, LJ Thomas contemplates the arguments the government brought forward and questions the very nature of UK-USA relations, so necessary that they can apparently destroy political stability:

The Foreign Secretary’s first PII certificate referred to the uncertainty which would be introduced into the working relationship between this country and the USA if the disclosure were ordered. The second PII certificate stated in terms that “disclosure of US intelligence information by order of our Courts would breach the trust and the fundamental requirement for confidentiality that lies at the heart of the UK’s liaison relationship with the US intelligence agencies. . . . It is not simply confidentiality and the secrecy of intelligence material that is an issue, however, but also the issue of the control that one government has over the intelligence information that it shares with another government in the expectation of confidentiality. . . . Breaching this principle will have significant implications that run far more broadly than this case.”

It is difficult at this stage not to simply demand the full disclosure of UKUSA in order to understand these “significant implications,” highlighted so strongly that they almost demand that we ask the question of what exactly is at stake. LJ Thomas’s ruling precipitated a hypocritical, voluntary disclosure of the 1955 version of the agreement, displayed on the NSA website as a quaint historical relic from the early days of the Cold War. The second part of this paragraph seems to let LJ Thomas know that he is facing something that is much bigger than his actual mandate:

The third PII certificate, acknowledging that the UK courts had power “in principle to disclose information provided by a foreign liaison service or derived from such information without the consent of the provider (and even against its expressed will),” concluded that the exercise of the power would be “extraordinary.” That was close to the Foreign Secretary’s assertion in the meeting with Secretary of State Clinton on 12 May that “the British Government would continue to make the case that it continued to be an inviolable principle of intelligence co-operation that we did not give away other people’s secrets.” An “inviolable” principle does not appear to acknowledge or permit any exceptions. Expressed in this way, the control principle assumes a level of primacy which diminishes the responsibility of the court as the ultimate decision-marker virtually to extinction.

LJ Thomas, who does not sound amused in the slightest by the blood promises exchanged between two Foreign Affairs peers, essentially understands that intelligence supersedes the rule of law in a way that can suffer no judicial review. But if the “international conspiracy” of the CIA rendition program is not extraordinary then what is?

CIA rendition map trajectory: including black sites, refuel stops, and detention zones (Europe, North Africa). Chart by Trevor Paglen

 

“the exercise of the control principle would be extraordinary.”

This decision matters because of the control principle that prevents disclosure on one end while authorizing it — in principle — on the other. When it comes to rendition and torture programs, the tendency to cover accessed, accessible, and processed information is US-centric. As the CIA’s activities have came under increasing congressional review, politicians and journalists have largely framed them as matters of strict American concern, and, more importantly, American accountability. They dominate US-based media, which perceive them only through an American prism. As a result, politicians and public alike have come to see issues like how the government has classified the CIA torture report and which branch of government has the hypothetical authority to release it only as US problem. Most media outlets completely omit the 53 other sovereign nation-states that cooperated with the CIA, with the exception of a handful of unconventional journalists unafraid of tapping into raw sources.

But investigations all over the world have released information about the program in various batches. US news outlets initiated a few—most notably a 2007 report from ABC news that itself precipitated investigations in Lithuania. The UK has managed to keep the degree of its involvement in the CIA torture program largely under wraps for two reasons. First, legislative review has been slow because many MPs do not possess the security clearance necessary to access relevant material on MI-6, MI-5 activities, hindering legislative review. Second, it is impossible for UK courts to sit on the activities, especially intelligence-related activities, of other sovereign states. If the latter is a well-enshrined principle of international law, the former is a worrisome indictment of an overwhelming national security principle overriding basic democratic checks and balances. This is a sore point in the UK, where judicial deference in matters of national security has been put to the test, each time with respect to UKUSA.

Put shortly, it might be possible to release information on CIA activities by looking at what the CIA requested from other agencies.

Screen shot 2014-05-29 at 07.42.30

The distrust inherent in intelligence communities raises the question of trust not between the government and the governed, but between governments themselves. Failing to uphold that secrecy by disclosing another nation’s intelligence, in violation of a classified intelligence-sharing agreement, would effectively destroy that agreement and undermine the credibility of the intelligence both nations share. If a nation sees its partner in an intelligence-sharing agreement as untrustworthy then it is unlikely to share intelligence high quality or value. A study on intelligence sharing in counter-terrorism by J. Walsh explains this in some detail:

. . . This understandable concern with security opens the possibility that shared intelligence might be of questionable reliability. States sometimes forgo the benefits they would accrue from defection in the short run in order to maintain their reputation for honest dealing. But concerns about security also complicate efforts to reassure partners by undertaking publicly observable commitments that, if violated, would undermine a government’s reputation. The details of most intelligence sharing agreements are kept secret from third parties. This makes it difficult for one partner to harm another’s reputation through an accusation of defection, since doing so necessitates revealing details about the intelligence that has or was supposed to have been shared.

The question remains as to whether the US would consider a judicial review of the intelligence—not the UKUSA intelligence agreement itself—to be a violation of the UKUSA agreement if it is part of a domestic judicial review rather than an investigation by a supranational or international court. The Foreign Secretary will not wait for an answer to that question. Defection is an issue of the state’s reliability at home and abroad. As the above table from Walsh’s study points out, the “transaction cost” is low because the US sees EU nations as trustworthy, reliable, and committed to achieving its same goals in the the War on Terror. After all, anything that could be a potential threat to the US could also threaten EU nations. From the nature of intelligence sharing and intelligence operations between the US and EU states, Walsh concludes,

. . . the gains that each state secures from sharing are larger than the expected cost of defection by the other state. Sharing should be straightforward to arrange here, and the participating states should focus on developing technical mechanisms—such as shared databases, common security procedures, joint training of personnel, and so on- that allows them to share information efficiently.

Applying this to the rendition program definitely extends to way more than collecting surveillance data: It is about the financial cost of deploying specially trained troops, training local armed forces (from law enforcement to paramilitaries), and sharing a defence apparatus. In short, allied states demand support not just from intelligence agencies but also from state departments, defence departments, and judicial departments—branches of the executive normally separated in their actions and subjected to different budgets.

Attempts to obtain documents related to CIA activities will fail outside of the US, whether they are pursued through legislative or judicial review. But the CIA never worked alone. A 2004 internal report requested by the Office of General Counsel acknowledge that the agency’s torture and rendition programs could not have worked as well as they did had so many other nations not collaborated so willingly. The extent of collaboration in Europe is staggering: Two reports—by rapporteurs Marty in 2006 and Fava in 2007—managed to track down rendition flights, prison names, and even the duration of detention. Most of what we actually know of the CIA’s torture program is in the possession of the EU Parliament and the European Court of Human Rights, where, in December 2013, Ben Emmerson referred to the program as “the largest international conspiracy.” Assuming that Sen. Dianne Feinstein holds and controls the only body of information regarding the torture program is a mistake. Collaborating agencies can disclose what the CIA will not, and nations in which the CIA operated can request it for review. If the CIA’s High-Value Detainee program simplistically could evade responsibility through extraterritoriality, it may have committed the expensive mistake of ignoring the importance future administrations in the countries where it operated would place on the right to truth.

What matters in the intelligence-sharing relationship is who in a bilateral agreement has the power, the control. Who has the resources, political and financial, to ensure compliance every step of the way. Who, in short, is the dominant state. Exercising the control principle on the UK front would result in controlled, lawful release of information about the CIA rendition program. That would imply that the UK is the dominant state in the US-UK relationship—that it has full sovereignty and dominance over its intelligence agencies and is capable of acting unilaterally and individually without asking for the CIA’s prior consent. In a paragraph cited above, however, Thomas presumes that violating UKUSA would be more damaging to the UK. That effectively means that the CIA controls the UK’s compliance in its counter-terrorism operations:

Dominant states must pay costs to manage a hierarchy as well. They must devote resources to closely monitoring subordinates’ compliance, to providing the benefits outlined in their agreement to share, and to punishing defection. For one state to effectively play the role of the dominant partner, it must control considerable political and economic resources of value to the subordinate state. Such power resources allow the dominant state to offer more valuable benefits and to more credibly threaten effective punishment when it detects defection. . . . Agreeing to . . . riskier forms of cooperation signals to the subordinate that the dominant state is reasonably secure that their hierarchical arrangement will work effectively.

Since UKUSA is still classified, the door is wide open for wild speculation on what the credible punishment can be in case of defection—or assimilated defection, should a Foreign Secretary fail to obtain a PII certificate like in the Binyam Mohamed case. More relevant, however, is the extent to which the UK and other states cooperated with the CIA’s torture and rendition program. Providing intelligence, detaching agents, deploying armed forces, and providing resources both material (planes, secure landings trips in airports) and political (corruption of governing agents to ensure silence, creation of prisons outside the legal system, interference and tampering with evidence during inquiries) all count as “riskier forms of cooperation.” As the dominant state, the US must be confident in its hierarchical system. But why? In order to answer that question, we need to see the UKUSA agreement.

Screen shot 2014-06-03 at 16.31.25

First page of the 1955 UKUSA Agreement, declassified in 2010. (3)

Can we look elsewhere for disclosure of CIA activities under the rendition program?

We also need subordinate states to exercise their own right of control. As long as the executive branch sees independent judicial review as a sign of defection, arguments like those put forward by the Foreign Secretary will always halt investigation and attempt to either scare judges into demanding release of information or maintain permanent confidentiality by creating closed submissions and closed rulings. If secret courts provide secret rulings on secret documentation, the end result will be the same—democratic accountability for violations committed by intelligence agencies will remain at absolutely zero.

Requesting accountability is a daunting, seemingly endless task. Patching together information on systematic and widespread human rights violations on each corner of the globe is a harrowing, Kafkaesque game of fill-in-the-blanks, with officials flat-out denying implication in the face of irrefutable evidence. And there is always the horrifying possibility of finding more than we dug for. Looking at the rendition and torture programs through a single national prism focuses only on a tiny portion of what that contains. Ultimately, it is a disservice to the hope for international prosecution.

Waiting for local judicial administrations to run their course, and fall on the desk of a judge with Thomas’s value system, may sound pointless. However, it might prove more effective than waiting for the US Congress to hold its previous administrations to account. If the EU Parliament reports were comprehensive enough to launch investigations into member-states, the path to figure out the extent of cooperation in nations still in denial is to find a way, through open justice, to release intelligence-sharing agreements. As LJ Thomas writes (emphasis mine),

[T]he confidentiality principle is indeed subject to the clear limitation that the government and intelligence services can never provide the country which provides intelligence with an unconditional guarantee that the confidentiality principle will never be set aside if the courts conclude that the interests of justice make it necessary and appropriate to do so.

Although the Foreign Secretary accepts that the principle is not absolute, he contends that, having made his own examination of the overall interests of justice, the control principle should be upheld. . . . I have been unable to eradicate the impression that we are being invited to accept that once the Foreign Secretary has made his judgement . . . that should be that. However, although in the context of public safety it is axiomatic that his views are entitled to the utmost respect, they cannot command the unquestioning acquiescence of the court.

Some in both the UK and the US have put forward that any disclosure of any kind based on any value or principle, be it personal or enshrined in law, can’t justified because of national security concerns. It is however important to ensure that the exercise of open justice and national security are not mutually exclusive. No one in the business of holding intelligence agencies legally accountable for their actions has ever contended that national security is a baseless construct for the containment of outside insurgency dating to imperialistic times. Global terrorism is real, and threats exist. We have thwarted some, and we have avoided others. But in an era where the word “terrorism” has been rendered virtually meaningless from overuse and the phrase “national security” has been thrown at both congressional and judicial reviews to order members of government’s silence and assent, it is hardly radical to request thorough oversight of counter-terrorism operations. In fact, it is an act of patriotism that highly regards the safety and security of fellow citizens. State hypervigilance is never a sign of a healthy democracy or a transparent society. It is a sign of paranoia that conflates of security with the status quo. An independent legislative review complete with muscular courts can restore not only political normalcy with temporary derogations but also help disclose information safely and in the interest of domestic prosecution of government abuses.

The CIA torture program has encompassed so many administrations and requested the skills and assets of so many agents worldwide that its investigation cannot be restricted to the US. Other states in intelligence-sharing agreements with the US must replicate Thomas’s actions. Each and every one of these countries has various degrees of dominance and subordination with the US and can exercise the control principle to release information on their activities and CIA demands should the US never be able to release its report. When it comes to intelligence sharing agreements, the US will lose its position of dominance.

 

 

 

(1). The Gibson Inquiry’s report has proved unsatisfactory on many levels. On the subject of rendition, it considers that the Marty and Fava reports are inconclusive and facts are unchecked. As the Inquiry itself stated, “The report does not find facts or reach conclusions. It is based on the scrutiny of documents, no witness has yet had the opportunity to explain or add to this information”. It is, therefore, thoroughly incomplete. Sir Peter Gibson himself acknowledged the report raised just as many questions.

(2). In an ironic twist surely not lost on anyone, Dearlove was referred to as the UK’s “own Snowden” in July 2013, when he revealed being in the process of penning a book detailing the events leading up to the Iraq war from his own perspective. Given the stalled state of the Chilcot Inquiry, Dearlove’s book could be a bombshell. A year later, Dearlove then demands more oversight for MI-6 and MI-5 operations, right after Sir Mark, ISC, was summoned to the Home Affairs Committee.

(3). The history of UKUSA from 1943 to 1955 is now available on the NSA website since 2010. The full declassified .pdf is here – Cold War centric infographics that seem to imply UKUSA is a relic of McCarthyism are on the National Archives website.

All quiet on the eastern front

The cases up for review at Guantanamo are as varied as the inmates themselves; their review boards, still in a dystopian universe of partial, remote disclosure and peculiar choice of classification; their release, despite clearance, more than uncertain. Closing the prison involves trying prisoners that have spent a decade or more inside the walls of a naval base in Cuba under circumstances that can escape their understanding – and that of their legal counsel. In that environment, legal creativity and ingenuity is paramount. And sometimes, it’s the pragmatic and hard cold logic that can perhaps build a way out.

Khalid Odah holds a picture of his son, Fawzi (c) LA Times

Fawzi Odah, one of 12 Kuwaiti detainees

Fawzi Odah is a citizen of Kuwait, the son of an Air Force colonel who had collaborated with the US during the first Gulf War. Captured in early 2001, he was then 23 years old. According to his family, Fawzi was performing acts of charity in Afghanistan when he was mistakenly captured in the post 9/11 frenzy that sent US troops to the region. The Pentagon’s version is vastly different – he would have been seized while roaming the Tora Bora mountains, carrying an AK-47 and swearing allegiance to Bin Laden. US bombs were at the time shelling the area, and Fawzi would have either been helping victims – or participating in the recruitment and training of a London-based terrorist cell. Those versions are mutually exclusive, and only a thorough judicial investigation could bring the truth forward.

The US has been at war with Afghanistan since 2001. Anyone captured on Afghan soil and detained under the provisions of the Afghan war can and should, legally, be considered a prisoner of war. This is what Fawzi Odah’s family and representation are arguing in this case – and in his status of prisoner of war (PoW), Odah should be immediately released as soon as the hostilities end. Problem is, there is no end in sight. If President Obama announced in his most recent State of the Union address that it was time to end “America’s longest war”, the Department of Justice, in Odah’s case, seems to think differently, or, in any case, not buying into the political convenience of announcing the end of a war another administration has started, but failed to bring to a close.

In his latest message to Congress consistent with the War Powers Resolution, President Obama detailed the mission in Afghanistan to great lengths (Libya was a one-liner, Somalia a barely longer afterthought).  He concluded (emphasis mine):

As I noted in my report of June 14, 2013, on March 25, 2013, the United States signed a Memorandum of Understanding (MOU) with the Afghan government under which the United States transferred all Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government. Pursuant to the MOU, any new Afghan detainees are to be transferred to Afghan custody and control within 96 hours after capture. United States forces in Afghanistan continue to detain approximately 53 third-country nationals under the 2001 Authorization for the Use of Military Force (Public Law 107-40), as informed by the law of war.

But can said law of war be truly applied to the indefinite detention that has taken place at Guantanamo for the last 12 years? Is any detainee captured in Afghanistan (as opposed to those found in Yemen or Pakistan) entitled to the protection of the laws of war? There is hope in attempting to grasp a shred of logic, a glimpse of consistency and holding on to the vain idea that the rule of law could ever be called upon when it comes to the horrific fate of the inmates of Guantanamo Bay. This is an unprecedented idea of defence, clearing and release of detainees, and it begs attention for the simple reason that it is at least addressing the fact that Afghanistan has maintained the appearance of a traditional battlefield.

At least for the majority of military deployment. (1)

US troops out on a patrol, Afghanistan, 2009

The 1950 Geneva Convention and Prisoners of War

The 1950 Geneva Convention relative to prisoners of war, their classification, determination, treatment and – eventually – release applies

to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Whether or not the conflict in question is in an active phase of hostilities or not is not subject to debate when discussing the provisions of the Geneva Convention. Under Article 4, anyone considered a belligerent and thus captured by one of the contracting parties to the conflict can be considered a prisoner of war. By asking the United States to recognise his status as such, Odah would subject to demonstration the narrative brought forward by the Pentagon, in that he would have been seen carrying a weapon (Art. 4-2-c), a member of a militia (Art. 4-2), and belonging to an authority not recognised by the party having captured them as a PoW (Art. 4-3).

Granted, any person not falling under the straightforward and somewhat easily determined categories of Article 4 can still be detained, without benefiting from the status of protected person – civilians, journalists, medical personnel and chaplains, to summarize – until such time as their status has been determined by a competent tribunal (Art. 5.). Has this time come for Fawzi Odah? Are twelve years long enough for a status of belligerent to be determined by a competent court? In a 2004 decision, Rasul v Bush, brought forward by the ever so relentless Center for Constitutional Rights, Judge Kennedy’s decision raised the issue of the amount of time that passes for indefinite detention to become endless and hopeless detention:

The detainees at Guantanamo Bay are being held indefinitely and without benefit of any legal proceeding to determine their status. As the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The CCR, in their summary of the case linked above, explains that several amicus briefs had been filed in addition to the written argument to the Supreme Court, including that of former American PoWs. This defence just might work, despite the fact that a prisoner of war is still protected by the basic rules of war as defined in the Geneva Convention, which have been violated at will during detention at Guantanamo. A prisoner can not renounce to any of his or her rights under the Convention; and recognition of said status could hereby impose duty to act upon the United States due to violations of humane treatment of said PoWs (articles 13, 14, 15  and 16 have all been violated in Guatanamo Bay. (2))

Guantanamo Bay’s Camp Delta: “Honor bound to defend freedom”

If we accept to – hopefully temporarily – suspend seeking reparation and retribution for the treatment of the detainees at the naval base, and concentrate on the release of the prisoners, in this case Odah – one of the last two Kuwaitis still being held in the prison – the Geneva Convention is clear. This is when the situation of the United States, and President Obama’s promise both in his address to Congress and this year’s State of the Union, meddles into confusion, uncertainty, lack of transparency, if not an egregious discrepancy between presidential wish fulfilment and the thorough pragmatism of the Department of Justice. Per Article 118,

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

In his State of the Union address on January 14, President Obama told Congress, America, the world:

More than 60,000 of our troops have already come home from Afghanistan.  With Afghan forces now in the lead for their own security, our troops have moved to a support role. Together with our allies, we will complete our mission there by the end of this year, and America’s longest war will finally be over.

Between presidential promise and alarming reality

In a piece published today in the Los Angeles Times and written by Richard Serrano, the issue of the Department of Justice catching up on the end of the war in Afghanistan has been made clear: US District Judge Kollar-Kotelly has dismissed the suit, calling it premature. And it is. A promise is not a ceasefire; a presidential speech will not sign the official end to the hostilities; an executive tradition such as the State of the Union and the general call to support the President does not constitute a thoroughly detailed enforced foreign policy. It certainly does not give any specific end date to the war. But it could have given some hope to men detained for over a decade, and who can not see any silver lining beyond the barbed wire fence of the prison. The proverbial end to the war “cannot be known at this time“, said the filing, and concluded,

It is inappropriate to engage in speculation at this time as to the timing of the future end of the hostilities.

Because the war in Afghanistan also launched the War on Terror, which will not end, and perhaps never end if counter-terrorism is vowed to become foreign policy in and of itself, if national security becomes the only motive for international and unilateral intervention, and if presidential edicts replace the War Powers Resolution. The end of the active phase of the hostilities in Afghanistan will not imply the complete withdrawal of US troops in Afghanistan. It will certainly not mean that the proxy war that has been effectively implemented and perfected under the Obama Administration will suddenly cease, hereby providing an end to the reason Guantanamo Bay even existed in the first place. The interpretation of what constitutes an active war has evolved since the Second World War, and has been radically altered by the concept of an international, global, cooperative “war on terror”, this worldwide pseudo-mandate to act and intervene in the name of an unknown, vague, unidentified and especially not judicially indicted enemy. Again, in the State of the Union:

For while our relationship with Afghanistan will change, one thing will not: our resolve that terrorists do not launch attacks against our country. The fact is, that danger remains.  While we have put al Qaeda’s core leadership on a path to defeat, the threat has evolved, as al Qaeda affiliates and other extremists take root in different parts of the world. In Yemen, Somalia, Iraq, and Mali, we have to keep working with partners to disrupt and disable these networks. In Syria, we’ll support the opposition that rejects  the agenda of terrorist networks.

Obama (c) with VP Biden (l) and Speaker Boehner (r)

The danger remains, but the danger is always present. Any nation-state at any given point can be subjected to attack, unless a Westphalia-like fragile status quo emerges from the 125 countries present at the United Nations. The presence of a danger in no way implies thorough military development, domestically or abroad; in no way does it imply the increasing number of permanent bases abroad; in no way does it demand the full cooperation of other nation-states in their own military deployment in third countries. Any of those actions can be considered an active part of hostilities.

But I will not send our troops into harm’s way unless it’s truly necessary; nor will I allow our sons and daughters to be mired in open-ended conflicts.  We must fight the battles that need to be fought, not those that terrorists prefer from us – large-scale deployments that drain our strength and may ultimately feed extremism.So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing.  That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

The key word here is “aggressively”. The cooperation with the UK, with France, with other NATO allies will surely bring about more active hostilities aside, especially in Africa where danger in Mali has already placed France in a difficult position; where the rules of UN-sanctioned intervention have been all but bypassed in Somalia; and the dim, slow roar of an approaching drone, although unmanned therefore not planned by ancient and obsolete laws of war, still remains an active part of the blood shedding and difficult targeting that is war.

If anything, the Department of Justice has refused to give in to the prudent and patient political rhetoric that is, in effect and deprived of all its emotionally engrossing figures of speech, propaganda. It is claiming an end to war, the longest war, and the promotion of peace while aggressively monitoring foreign deployments and using systems of intelligence, surveillance, captivity, detention, targeted intervention and fantastic, K. Dickinsian levels of technology to fight a war that had never been fought before. It is perhaps more effective to dismiss the idea of a foreseeable end to war. It is also terribly disheartening, disenchanting, and ominous, to deem “inappropriate” the concept of ending a war that has already outlasted any other.

But can we tell a man caged in a prison he had never heard of before, fighting a war he didn’t recognise,  in a country that wasn’t his,  for a crime he says he didn’t commit, that there is no end in sight?

(1) the author is currently working on a judicial review of counter-terrorism laws that will address the legal question of counter-terrorism as a proxy war. 

(2) this includes a vast number of similar provisions specifically detailed in the Convention in addition to the general provisions of the articles listed. Some of which relative to right of legal counsel, right to education and religious activities, and fair trial – which is never satisfied by military commission.

Lethal allies: Khan v Secretary of State

As we tend to focus on the extraordinary feats of the International Criminal Court and somehow seek to enhance its legitimacy to trial war crimes, even in abstentia, we often lose sight of the fact that domestic courts are usually called in first instance to investigate, hear and sentence crimes committed by or against nationals. However, because internal processes are hardly reported in their entirety or are shrouded in secrecy, the ongoings of the rule of law in counter-terrorism proves to be tricky to address, and even trickier to make sense of. Sometimes, cases speak for themselves; this is the case of the Divisional Court on Appeal of the High Court of Justice this week, whose decision to refuse to permit appeal on the Noor Khan v Secretary of State,  highlights, outlines and emphasizes the inability to access political decisions surrounding the War on Terror. Why this decision has somehow fallen into deaf ears seems strange given the claims made and consequences for current questions of accountability of the United Kingdom in its worldwide counter-terrorism practices. Moreover, this raises the question of the accountability of the United States, the extent of the collusion being so deep it has permeated every level of counter terrorism operations (surveillance, intelligence, and ‘combat’).

Martin Chamberlain QC represents Noor Khan, the appellant, and an old friend – James Eadie QC, whom we were introduced to during Hassan v United Kingdom at the European Court of Human Rights – once again represents the Secretary of State, in yet another case in which collusion with the United States forms the basis of criminal accountability.

From a rally against drone strikes in Pakistan, October 2012

Facts of the case

Noor Khan comes from Miranshah, in the North Waziristan province of Pakistan. His father was a tribal elder, a member of the local Jirga, whose attributions are of legal and social order. On March  17, 2010, as his father was sitting outside holding a meeting with other elders of the province, a drone strike hit the area, killing 40 people, including Noor Khan’s father. Drone strikes, as of the time of the case and the time of this decision, are operated by the CIA. The process of intelligence gathering leading to a possible strike are not only a matter of United States intelligence, but it has also been reported in several media outlets, contemporaneously, that British surveillance firm GCHQ, operating under the British Secretary of State, was not only collecting intelligence in matters of the United States’ “War on Terror”, but collaborating with the US. GCHQ was sharing locanational data with the CIA, data from which the CIA determined which targets to hit.

On December 16, 2011, attorneys for Noor Khan wrote directly to the Secretary of State seeking clarification on GCHQ activities, especially in matters of facilitating CIA targeting and killing of suspected and alleged militants – often civilians – in Waziristan. Two months later, the Treasury Solicitor replied that regardless of the supposed gravity of the case, it would not derogate to the traditional “neither confirm nor deny” response given in those circumstances; disclosing GCHQ activities and their relation to CIA activities would “risk damaging important public interests, including national security and vital relations with international partners“. That line of defense – maintaining national security interests and the absolute, utmost and superior foreign relations between the UK and the United States – has permitted the refusal to appeal in the Divisional Court.

That Noor Khan’s father was a civilian, that collusion is a serious crime, and that the UK is responsible for indirect involvement in the grave breaches of human rights in the course of the “War on Terror” has not been found to constitute “extraordinary circumstances” in which the Court would hear a case relative to acts committed by UK nationals in a UK-supervised and UK-authorized operation of intelligence.

the absolutely-not-scary bird’s eye view of the GCHQ headquarters in Cheltenham, England

First attempt at recognition in a UK court of law

It is important to first state that Noor Khan and his solicitors have first called for a judicial review of the procedures under which GCHQ was operating in Pakistan; in that, not only was the Secretary of State not empowered with granting authorization to pass intelligence onto the CIA, but that in doing so, knowing full well the intent of the CIA in regards to that information, GCHQ would hereby facilitate the commission of war crimes or crimes against humanity. Due to the highly secretive nature of GCHQ operations, his solicitors also made a request for transparency – asking for the Secretary of State to not only formulate a lawful way to do so, if such was the way in which the UK wished to cooperate in matters of intelligence, but also publish the relevant circumstances. A week before this hearing, the Secretary of State emitted concern regarding the sensitive – understand: classified – nature of the elements discussed in front of the Divisional Court. It filed a public interest immunity (“PII”), which has the effect of not disclosing, even in the name of public interest, information gathered within the annexes of the case. One of the annexes contains a statement made by Paul Morrison, the former Head of the Counter-Terrorism Department at the time of the events of the case.  This is neither random nor casual – the decision to ask for full disclosure in matters of intelligence abroad and collaboration with the War on Terror waged by the transatlantic cousins has long been an issue of contention among public interest and human rights attorneys in the UK, fighting the issue of national security as much as possibly can in an effort to reveal to the public the real activities of GCHQ… which were eventually brought to light thanks to the Snowden leaks. This battle is not won, but has succeeded a couple of times. Revelation of this case is one of the instances in which it appears clear to us that the public interest lies in knowing that the UK government is participating in criminal activities in what it believes or assumes is a “vital foreign relation” with the United States.

The Divisional Court did not see it necessary to consider non-disclosure. It dismissed the claim for judicial review on December 21, 2012.

The claimant then reformulated to please the Court, keeping however in mind that the crux of the case lied within the tied responsibility of the UK in the commission of war crimes by the US; and that the difficulty would arise when the UK Court would find no jurisdiction nor discretion to judge the lawfulness of the US actions in Pakistan. In the reformulation, and the instruments used, is a skilful yet slightly warped intention by Martin Chamberlain QC to attempt to bring to the Court the facts of the GCHQ activities by themselves, and the danger they posed by themselves, without forcing the Court to examine the direct implications created by the CIA and therefore the United States. This delicate game of chess would then lead in the deposition and conclusion to a counter terrorism version of Alice in Wonderland in which the wonderland is filled by the dead bodies of civilians never indicted nor even allowed to make a case, where Alice would be a civilian attempting to reach for accountability in democratic societies supposedly upholding the rule of law, domestically and internationally, yet the Cheshire Cat of United States’ national security hovered over the distraught heads of those still holding onto the International Crimes Act of 2001. Reading this decision is falling down the rabbit hole of the unbelievable denial of representatives of the United Kingdom that not only is a context that the court refuses to address, at least under public admission, but that relations with the United States have to be preserved, at all costs. All. Costs.

A graph from PBS showing localisation of drone strike and approval rates by country. 44% of the UK population polled by Pew in 2012 would approve of US drone strikes.

Domestic instrument: the Serious Crime Act of 2007

When it comes to submitting a criminal claim committed by a UK national and its UK authority / leadership in a UK court, resort to domestic law is not only paramount, but in the international counter terrorism context, important to reiterate that domestic law in fact does bear provisions that allows alleged and suspected war crimes to be heard in domestic courts. It is only in its failure to do so that supranational (in the case of the UK, European) and international jurisdiction mechanisms can be implemented. Luckily, the Serious Crime Act of 2007, Section 44 contains what the claimant alleges was GCHQ activities: aiding and abating crime. (respectively, 44 “intentionally encouraging or assisting an offence”; 45, “encouraging or assisting an offence believing it will be committed; 46, “encouraging or assisting offences believing one or more will be committed.”) As those sections deal with actus reus, it is possible that, under the SCA 2007, a person might be found not guilty of the offence in question (section 50, Part 2) if he acted reasonably.

Professor Michael Clarke, director-general of military think tank Rusi, told Parliament in a session that it was “little doubt” GCHQ had passed off intelligence to the CIA.

The integration of information operations and sharing means that of course we share information. It would be very hard to say that the information that we share about people of interest isn’t used for a drone strike.

According to The Bureau of Investigative Journalism, which has been documenting the damages of the drone wars in Pakistan, Yemen and Somalia, the estimates of casualties due to drone strikes in Pakistan are between 2,537 and 3,646 since 2004, for a total of 381 strikes (330 under Obama, elected two years before the strike that killed Khan’s father). Those numbers, it appears, would make the assumption that passing off intelligence to the CIA is unreasonable.

Debating the war on terror: defining terror, war, combatant, immunity, and conflict

This is precisely the point where the Court’s decision starts burying itself into a sinkhole of head-shaking, refusal to consider a drone strike as murder.

In my view, a finding by our Court that the notional UK operator of a drone bomb which caused a death was guilty of murder would be understood – and rightly undersood – by the US as a condemnation of the US.

Note the use of the conditional tense.

In an attempt to what could appear to appease the Court, Chamberlain finds himself in the position of arguing there is, in fact, no “war on terror” as is always politically argued – that the issue of the conflict between the United States and Pakistan is of a whole different nature. Arguing Khan’s case without mentioning the serious breaches of international criminal law committed by the US is nothing short of a mental game of chess in which all of the pawns have to be sacrificed to the altar of political pandering. The Court will refuse in all matters possible – legitimately, jurisdiction, and less legitimately, criticism – to consider, even contextually, that the CIA drone strikes are unlawful under international law. It was a question of tip-toeing around the issue as much as legally possible whilst still assessing the gravity of GCHQ collusion.

Anticipating a possible line of defence by the Respondent to call combatant immunity for GCHQ operatives working and cooperating with the CIA on drone strikes, Chamberlain then proceeds to describe what seems to be a denial of the War on Terror, but actually is a perfectly logical and rational denunciation of said War on Terror;  a reasonable claim that none of these facts could possibly exist in a democratic society abiding by the rules of criminal justice abroad and at home, following the regulations of warfare if such a conflict became an international armed conflict, and human rights law. Chamberlain explains why it would be impossible – reading, impossible to admit – a defence of combatant immunity:

First, CIA officials are not members of the US armed forces and GCHQ officials are not members of the UK’s armed forces. They cannot, therefore, be combatants. Secondly, it has never been suggested that there is an armed conflict with Pakistan. In so far as it is suggested that there is an armed conflict with Al-Qaeda taking place in Afghanistan and elsewhere, that is wrong because a) Al-Qaeda is not a sufficiently coherent grouping to be capable of being a party to an armed conflict; and b) the acts of violence with which Al-Qaeda is associated are too sporadic to reach the threshold of violence required to establish the existence of an armed conflict. Thirdly, if there is an armed conflict in Pakistan between the US and those who are targeted by the drone strikes, it is of a non-international nature.

End scene.

Eadie treads lightly. He doesn’t want to deny the fact that there is a context of conflict in which the issue of whether or not an intelligence agent constitutes a combatant – and is therefore eligible to the defence of combatant immunity – is “fact-sensitive”. He will even go as far as saying that “this is a factor of great importance”. But it’s clearly not enough. The Lords expressed that it was “unnecessary to express a concluded view”. It appears as though this “factor of great importance” ought to be discussed in the eyes of both Eadie and the Court, but preferably not in a court of law, and definitely not on public record.

January 2011: Pakistani tribesmen march against drones in Miranshah, the town where Noor Khan’s father was killed. (Global Post/AFP/Getty)

Chamberlain accepts that all manners of defence could be taken under Section 44 and following of the Serious Crime Act 2007. He also accepts that individual responsibility of GCHQ officials would require the satisfaction of mens rea and could hereby be dismissed on the claim that said official would simply follow a policy. The applicant however insists that the lawfulness of GCHQ’s collusion with the CIA is in question. Problem is, it is impossible to insist that indirect responsibility can be raised for a war crime unless said war crime is acknowledged as such. In this regard, the Court could be within its rights in matters of jurisdiction and discretion in sitting against judging the policies of the United States. It appears, however, that the issue of jurisdiction, although described in a page and a half, is secondary to the Divisional Court. What was mentioned and what seemed to have motivated the dismissal is political, and is, of course, tied to this ethereal, evanescent yet ubiquitous national security – this national security that justifies a PII claim, that justifies refusing to acknowledge criminal activity by an allied state, that national security that authorized, extra-constitutionally, criminal activities by GCHQ officials.

In the secondary claim made by the claimant, which refers to international humanitarian law; more specifically, section 52 of the International Criminal Court Act of 2001, crimes committed outside of a domestic court’s jurisdiction. Section 52 refers to the criminal act as being an ancillary offence if being committed outside of England and Wales, yet still amounting to a crime against humanity. Schedule 8, article 8 (2) (c) (i) defines crimes against humanity as such:

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placedhors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

The claim made by the Respondent regarding the jurisdiction of the Court and its limited scope following the US Supreme Court decision Underhill v Hernandez – “and the courts of one country will not sit in judgement on the acts of the government of another done within its own territory” – is impossible to detach from the facts of the case. Asserting knowledge of a war crime on the part of GCHQ officials acting on behalf of the Crown leads to the denunciation of those drone strikes as being in violation of the Geneva Convention and the International Criminal Court Act of 2001; the targets being civilians, and not “alleged militants” as often declared by NATO officials.  Although the Underhill ruling is impossible to overturn in international law, as state sovereignty is a governing principle, comes the permanent, overbearing, overwhelming and absolutely inevitable exceptionalism of the situation. This is a grave, serious breach of human rights law and international criminal law. Chamberlain maintains that his injunction for relief is based on the fact that CIA actions are committed by UK nationals, which makes their actions unlawful under English law. The very thin line to walk between international jurisprudence on never sitting on the legality of another state’s actions and ruling clearly on acts committed on behalf of said state seems clear to Chamberlain. It also seems clear that international human rights law imperatives ought to be addressed within the Court. It appears incumbent to the United Kingdom to declare the fact of GCHQ collusion with CIA-operated drone strikes an offence so serious, defined and authorized under cloak of secrecy, that the judicial branch fell under duty to address it.

James Eadie QC, solicitor for the Respondent, who himself recognized that the issue of crimes committed by the CIA were “a factor of great importance”

The judicial branch and executive authority: a Court decision upholding that “the law is bound to diplomacy”

Paul Morrison, the former head of the Counter-Terrorism branch, gave testimony in an annex that the Respondent initially sought to classify. The Lords maintained they would have reached the same conclusion even without Mr. Morrison’s addendum, but it bears repeating that the issue in this case was not one of simple jurisdiction, but a matter of discretion in addressing war crimes committed under counter-terrorism actions. His statement indicates that not only would the Court hear Mr. Khan in defiance of national security, but that said security is held in high regard by the United States, and therefore this relationship must be preserved for the good standing, tenure and safety of the United Kingdom:

… The UK’s bilateral relationships with the US and Pakistan are critical to the UK’s national security as they are both key partners in efforts to combat the very real threat of terrorism faced by the citizens of all three countries. A key feature in international relations is that law, politics and diplomacy are bound together and the assertion of legal arguments by a state is often regarded as a political act. The UK’s international alliances could be damaged by the assertion of arguments under international law which might affect the position of those states. (…) Whatever the findings of the Court (…) (they) are liable to complicate the UK’s bilateral relations with both the US and Pakistan, and there is a clear risk of damage to essential UK interests.

The argument advanced by Mr. Morrison is nothing new and has been a major obstacle in the rule of law between nations since Westphalia. The concept of strict legality versus transcendent legality has been well-addressed by Gerry Simpson, who illustrated the issue in a comprehensive way (1), understanding the complex mechanisms between the somewhat absolutist position of the supranational, suprapolitical, and overarching rule of international law, and impossibility to remove diplomatic protocols, transnational agreements, and local and international politics from a position in which one state’s actions are deemed a war crime by another, or a conflation of, states.

A standard position  emerges from all this that seeks to implicate something called ‘politics’  in the ruination or compromise of something called ‘law’. A just and meaningful international criminal order could only then be created by cleansing the system of political influence. When politics interfere with judging, then politics must be swept aside.  (…) For ‘realists’ like Hankey and Kissinger, war crimes trials are bad politics. Generally, such pragmatists are hostile to the idea of applying principles of justice at the international level. (…) There is no over-arching and trumping justice in the international system that would override these concerns. (…) The certainty of criminal law must give way to the subtleties of diplomacy.

However, in this particular case, the United Kingdom is refusing to grant relief on actions that are clearly demonstrated as grave breaches of the Geneva Convention – actions that were committed by UK nationals within a corporation acting on behalf of the UK government in collusion with a foreign state directly committing these violations. The United Kingdom would not simply sit on the acts committed by the CIA, let alone rule on them, but would hear, investigate, inquire and judge the actions of GCHQ officials. By placing the interests of its relationship with the United States and their bilateral work on intelligence gathering above the lawfulness of UK agents’ actions, the UK is somewhat granting immunity to GCHQ officials, arguing they are simply respecting the agreements between the UK and the US.

If Simpson is correct, and refusing to address the issue of politics in international criminal law amounts to strict legalism, there is perhaps an interest in using the rule of international law as an instrument of measure against the failure of the state to operate with, by and through lawful, transparent means. Chamberlain reiterated a few times that should the actions of GCHQ officials be found lawful under English law, then the Respondent should not see any issue in publishing the authorization and actions in the name of public interest. GCHQ agents would be gathering data, as ordered, and passing it on to the CIA, as ordered, unbeknownst to them that the CIA is operating those drones – outside of the usual Department of Defence military action scope – and directing them against civilians in Pakistan (as well as  Yemen, Somalia, and Afghanistan) suffering military action that typically does not fall under military and hereby congressional review. The United Kingdom, in assisting the CIA, finds itself in the same position of operating extrajudicially in order to achieve a means to an end that is somewhat unclear.

On December 5, 2013, Ben Emmerson – UN Special Rapporteur on Human Rights while Countering Terrorism – told the UK Parliament that the UK complicity on US drone strikes was “inevitable”.

There’s a reasonable presumption that the provision of information or sharing of information makes us complicit in an American policy.

Complicity implies responsibility. As per the International Criminal Tribunal for Yugoslavia (ICTY, in Tadic): “responsibility for a crime other than the one agreed upon  in the common plan arises only if, under the circumstances of the case, it was foreseeable that such a crime be perpetrated  by one or other members of the group and the accused willingly took that risk.” (para. 228) If GCHQ agents wish to bring forward a common defence they were left ignorant of the actions the CIA would undertake with the intelligence they helped gather, they should be invited to do so in a court of law. Aside from the politics of assisting the United States in the unfathomable concept that is the War on Terror.

(1) Simpson, Gerry. Law, War & Crime. Polity Press, 2007.