[*** Asterisks denote that part of the
written evidence that has not been reported because it is covered
by the House of Commons' sub judice resolution.]
Submission from Peter Gill, Research Professor
of Intelligence Studies, University of Salford
SUMMARY
— Questions of law and human rights
are now central to intelligence governance but oversight requires
that as much attention be given to the working practices of agencies
as to the legal and policy framework within which they operate.
— The pressures on agencies to "deliver results"
and to relax oversight are greatest when security fears and uncertainties
are at their height. Therefore, the need for oversight is greater
at times such as this in order to promote effectiveness and prevent
abuses of human rights. — Intelligence co-operation
between nations and between state and corporate sectors has increased
since 9/11 but must not become a mechanism for out-sourcing illegality.
— Evidence of UK collusion in torture
demands that a comprehensive and well-resourced inquiry be conducted
into how, if at all, this was authorised and the consequences
thereof in order to ensure that measures are instituted to prevent
any recurrence.
— The development of security and intelligence
networks between state and corporate actors during the last twenty
years has not been matched by appropriate oversight arrangements.
— Overseers in the state sector must
foster relationships with each other, transnational bodies such
as the European Parliament and Council of Europe and the wider
community of researchers, journalists, NGOs.
1. Introduction
1.1 I hope that my research into intelligence
matters over the last 25 years will be helpful to the Committee
in providing some context, especially regarding intelligence and
human rights, intelligence cooperation, extraordinary rendition
and oversight. I have no specific knowledge of the cases and allegations
into which FAC is inquiring beyond what has appeared in public
via reports, court cases and the media.
1.2 Specifically, my article on intelligence
and human rights has just been published in Intelligence and National
Security and I have an article on the Intelligence and Security
Committee and oversight forthcoming in International Affairs.
A book chapter on intelligence co-operation since 9/11 with particular
reference to extraordinary rendition will also shortly be published.
I have made copies of these available to the Committee.
2. Changing context for intelligence work
2.1 Legality: In the 1970s a series of legislative
and judicial developments in North America and Europe instituted
a process of "legalising" intelligence that had previously
been subject to executive decrees only. The European Court of
Human Rights (ECtHR) decision in Klass v FRG (1978) provided
the basis for most subsequent cases[29]
and the development of the statutory framework for intelligence
activities in the UK. Here the requirements for legality have
been met by piecemeal legislation including the Interception of
Communications Act (IOCA) 1985 (legalising metering and interception
of telephone and mail communications); Security Service Act (SSA)
1989 (providing a statutory mandate for MI5 and authorising "interference
with property" including burglary and theft); the Intelligence
Services Act (ISA) 1994 (similarly covering MI6 and GCHQ).
2.2 But while law is a necessary condition for
the proper conduct of intelligence, it is not a sufficient condition.
Indeed, intelligence law exists largely to authorise intrusion
on what are normally considered human rights even if it also establishes
procedures to ensure that appropriate authorisation is obtained.
Thus the law is empowering as well as potentially restricting
on the action of state officials.
2.3 Rights: Human rights protected under
the Human Rights Act 1998 and the European Convention on Human
Rights (ECHR) are in three categories: absolute, limited and qualified.
The main ones affected by intelligence activities are as follows:[30]
2.4. Absolute: the right to life (Article
2) and the prohibition of torture, inhuman and/or degrading treatment/punishment
(Article 3). These cannot be restricted in any circumstances,
even in wartime or other public emergency, that is, they are "non-derogable".
Article 2 does incorporate circumstances in which states may take
life without contravening it, for example, self-defence against
unlawful violence.[31]
2.5 Limited: the right to liberty and security
of the person (Article 5), fair trial (Article 6) and freedom
of thought (Article 9[1]). These are derogable `in time of war
or other public emergency threatening the life of the nation'
(Article 15) but otherwise cannot be "balanced" against
any general public interest.
2.6 Qualified: the right to privacy (Article
8), freedom to manifest religion or belief (Article 9), freedom
of expression (Article 10), freedom of assembly (Article 11) and
freedom from discrimination (Article 14). There is some space
for "balance" in that Articles 8-11 themselves contain
the conditions that may be used to limit the application of rights,
for example, "as necessary in a democratic society in the
interests of national security, public safety... ."
2.7 As with law, the incorporation of human
rights into the governance of intelligence is relatively recent
and much to be welcomed but there remains a real problem that
these will not be automatically translated into intelligence policy
and practice.
2.8 Discretion: The "rules" for
the conduct of intelligence will be laid down in only the most
general way by a statute; ministerial directions can provide more
detail but the most detailed guidelines will be written internally
to the agency. The enforcement of these rules depends on a combination
of training and management but their impact can only be gauged
by taking account of their relationship with discretion. Discretion
takes different forms including that area of choice which is permitted
explicitly by the rules, exists by way of the ambiguity inherent
in rules or exists simply because of the impossibility of rules
anticipating all eventualities. In inquiring into allegations
of organisational abuse of law and rights, we need to understand
how organisational "working practices" affect performance
and the extent to which they are ethical.
2.9 Ethics. There are some complex philosophical
arguments concerning the ethics or otherwise of intelligence activities
that cannot be pursued here but, taking the central issues of
rendition and torture, the prohibition on torture contained within
article 3 of the UN Convention against Torture is final. UK support
for this has been expressed on may occasions by ministers and
heads of the UK agencies and the FCO Human Rights Annual Report
refers proudly to the UK anti-torture initiative.[32]
Yet, persistent allegations of UK agencies' collusion in torture
in recent years have led to this inquiry, so it appears as though
ministerial and managerial statements do not actually prevent
rights' abuses. This brings us to the issue of oversight but,
before examining that, it will be useful to consider how the current
terrorist threat is perceived by the government and aspects of
the current organisation of intelligence, especially intelligence
co-operation.
3. Current Threat
3.1 Compared with previous terrorist threats
in the UK such as that from Northern Irish paramilitaries, the
current threat is presented by the government as distinctive in
four respects: it is an international threat, with suspected terrorists
coming from a range of African and Middle East countries, if not
actually born in the UK; the threat comes from various individuals,
groups and networks, sometimes overlapping to assist each other
but independent of state support; they intend to cause mass casualties
and often to kill themselves in the process; and those involved
are driven by particularly violent and extreme beliefs.[33]
At various points in recent years the profile of those posing
a threat has shifted and this has all contributed to a much greater
uncertainty in the agencies as to who poses a threat, where, when
and how.
3.2 This has led governments to take regular
initiatives in their effort to reassure the public that all is
being done to protect them. This is entirely proper but may lead
to an excess of legal and policy innovations without adequate
evaluation of the effectiveness or otherwise of previous measures,
let alone consideration of the possible outcomes (both intended
and unintended) of new initiatives. So, as the precautionary principle
has been imported from health and environmental policy to security
matters, proper heed has not always been taken of the potential
for policy to be counter-productive. If this is the case in government
in general, we should accept the strong likelihood that the pressure
is felt even more keenly by officers working on the front-line
of counter-terrorism.
4. Organisation of Intelligence
4.1 Intelligence governance (and most of
the intelligence literature) has concentrated on intelligence
within the state sector. State agencies, whether as part of police,
military, border guards or as intelligence agencies in their own
right, remain the central focus of interest but they are not the
only way in which security intelligence is organsised. "Intelligence",
broadly defined, is as likely to be performed by people working
in the private sector as in the public. This is due to the corporate
sector's own concerns with protecting personnel and profits, their
additional respinsibilities as a result of privatisation and "out-sourcing"
and their crucial role in "protective security" as part
of broader counter-terrorism policies.
4.2 There are a number of features to the rapid
growth of intelligence networks but, for the purposes of this
inquiry, most significant is the transfer of information. Efforts
to increase and improve intelligence co-ordination and sharing
have been much emphasised since 9/11 and these efforts have taken
place within countries as well as between them. The former includes
the development of "fusion" centres such as the Joint
Terrorism Analysis Centre (JTAC) in the UK. But these formal arrangements
for sharing intelligence do not replace the informal networks
between intelligence officers on which they are often based. Informal
intelligence networks, like any other social network, develop
on the basis of trust between individuals and agencies nurtured
by a shared perception of interests and reciprocity. Attempts
to formalise these networks are based partly on an effort to make
co-operation more systematic and reliable but also because the
very informality that operatives value—the lack of transparency
and accountability—is viewed with suspicion by their managers
who fear being held responsible if something goes wrong.
4.3 Intelligence gathered for the purposes
of security has the capacity for both good and bad and cooperation
between agencies can have both positive and negative consequences
for public safety. On the positive side, clearly, co-operation
between agencies that succeeds in the timely sharing of intelligence
that prevents a violent attack can leverage the effectiveness
of any single agency. But the "dark side"[34]
of intelligence co-operation was revealed in the extraordinary
rendition policy.
5. Extraordinary Rendition (ER)
5.1 "Rendition" refers to the
extra-judicial transfer of someone from one state to another and
may take various forms, "to justice," "to detention,"
"military," "extraordinary". It is the last
of these that concerns us, involving "extra-judicial transfer...
for the purposes of detention and interrogation... where there
is a real risk of torture or cruel, inhuman or degrading treatment."[35]
Practice in the US pre-dated 9/11 by some years; there had been
occasional "renditions to justice" for many years, mainly
by police agencies close to borders but from the early 1970s drug
enforcement agents developed Operation Springboard to seek the
rendition of traffickers back to the US.[36]
The policy was extended in the 1980s to terrorists also but, after
9/11 the CIA were given carte blanche to take whatever
action it deemed necessary regarding individuals either suspected
of involvement or of planning future attacks[37]
and the policy of "extraordinary rendition" was put
into place as one aspect of that response.
5.2 It is clear that the US reaction to 9/11
had a significant impact on previous intelligence sharing practices.
For example, Project A-O set up within the Royal Canadian Mounted
Police (RCMP) after 9/11 to investigate the prospects for any
further attacks identified Maher Arar as a "person of interest"
and information was passed to US agencies in contravention of
RCMP policies. This included sending information which had not
been screened for relevance or reliability and without the usual
caveats restricting the use of the information to intelligence
purposes. In this manner the RCMP's entire investigative database
on three CDs was passed to the US agencies, including "a
good deal of inaccurate information about Mr Arar, some of which
was inflammatory and unfairly prejudicial to him."[38]
As a result Arar, a Canadian citizen, was rendered by the US to
Syria where he was tortured during 12 months detention.
5.3 The Intelligence and Security Committee
(ISC) report into what UK agencies knew of rendition paints a
picture in which the realisation that US was using ER rather than
military renditions or "rendition to justice" developed
slowly through 2002 and 2003.[39]
The ISC report noted in the case of *** ISC concluded:
Despite the Security Service prohibiting any
action being taken as a result of its intelligence, the US nonetheless
planned to render the men to Guantánamo Bay. They then
ignored the subsequent protests of both the Security Service and
the Government. This has serious implications for the working
of the relationship between the US and UK intelligence and security
agencies.[40]
5.4 There is disagreement as to the validity
of any information that may be obtained from torture: in their
testimony to the ISC during its earlier inquiry into the handling
of detainees in Afghanistan and elsewhere, MI5 said:
We have however received intelligence of the
highest value from detainees, to whom we have not had access and
whose location is unknown to us, some of which has led to the
frustration of terrorist attacks in the UK or against UK interests.[41]
Evidence that has now emerged calls out for
an inquiry to test this contention. The MI6 Chief told the ISC
in 2006 that information relating to a potential attack on Heathrow
came from the interrogation of Khalid Sheikh Mohammed,[42]
who was arrested in 2003 and held at a CIA "black site"
in Poland.[43]
The Obama administration released four memos detailing the techniques
used by CIA on 16 April 2009 and an unredacted version of one
of these has since appeared, showing that KSM was waterboarded
183 times in March 2003.[44]
This provides an opportunity for those with appropriate clearance
to conduct a detailed study of how the information from the CIA
was evaluated.
5.5 What main conclusions can be drawn from
the implementation of ER? First, it did rely to some extent on
traditional networks within intelligence, although there is evidence
that the CIA sought to avoid dealing with their usual partners
(partly because of fear of exposure through national oversight
mechanisms[45]
or perhaps through not wishing to embarrass old allies). There
is evidence that the usual "rules" regarding intelligence
sharing were placed in cold storage after 9/11 as allied agencies
sought to assist the US counter terrorist policy. *** Inquiries
into this to date have been hampered by the application of the
"Thrid Party Rule" by which recipients of intelligence
may not disclose it to a third party without the permission of
the originating agency. Though there are good security reasons
for this, it might be deployed in order to prevent a proper accounting
for illegal behaviour.
6. Oversight
6.1 he whole saga of extraordinary rendition
has been exposed by a variety of mechanisms, some of them governmental
or inter-governmental, others in civil society including journalists,
lawyers and researchers. The Committee has identified its particular
interest in the oversight of private contractors employed by the
FCO and posts overseas but I would suggest that oversight must
be viewed more holistically. I understand that intelligence questions
are properly within the remit of the ISC but I suggest that the
way intelligence oversight has developed in the UK is already
too compartmentalised and the development of intelligence networks
(discussed above) demands that oversight be structured similarly;
otherwise it is likely to fail.
6.2 If oversight is inadequately structured or
resourced then it is vulnerable in key respects. ***
6.3 ***
6.4 *** Did officers in the field request
guidance and authorisation from superiors? If so, at what level
was this determined? Were ministers involved in any deliberations?
Any such enquiry must be adequately resourced and conducted by
those with clearance to examine all papers and interview those
involved; anything less will vulnerable to the endemic secrecy
of intelligence.
6.5 The role of private military and security
contractors (PMSCs) has increased significantly in the last twenty
years as states have "downsized" their own security
establishments at the same time as the demand for security services
to respond to a greater variety of asymmetrical conflicts has
increased.[46]
Their corporate structure means that they cannot be simply described
as "mercenaries" and there is some potential for the
development of "corporate social responsibility' through
self-regulation[47]
but the fact that their prime accountability is to the private
interest of shareholders rather than the public interest has given
rise to concerns. Like state intelligence agencies, they are also
very difficult to oversee—to the secrecy of their security
role is added a dimension of commercial confidentiality—and
monitoring their behaviour can be very difficult.[48]
The Security Industry Authority (SIA) established by the Private
Security Industry Act 2001 has a remit covering just Great Britain
but one route to oversight would be to require that FCO employs
only contractors who are members of the Approved Contractor Scheme.
Where the FCO employs firms based abroad this would not be applicable.
In such cases there would need to be a requirement that all contracts
with PMSCs laid down standards for performance equivalent to those
established in Britain by the SIA, for example, on the vetting
of personnel, and to include an acceptance by the PMSC that their
activities could be monitored.
6.6 This, of course, raises the issue of
who is to carry out such monitoring and brings us back to one
of the central points of this submission, that is, the currently
unregulated growth of security networks. It is not just PMSCs
that require regulation but their interchanges with state agencies.
This requires some combination of rules and oversight. The rules
regarding the circumstances of information transfer must be established
via memoranda of understanding that will be available to the relevant
oversight body and their powers and resources must be adequate
to ensure that they can monitor the implementation of the MOUs
but also check on any allegations of informal transfers that may
breach the rules and result in possible malfeasance. This, of
course, begs the very big question of where such an oversight
body is to be located.
6.7 At the moment, poorly coordinated oversight
of security and intelligence networks is conducted by a combination
of governmental, inter-governmental (eg Council of Europe), and
civil society actors. In the absence of some supranational governing
authority this combination will continue but serious thought needs
to be given as to how this might be improved. For example, national
authorities (governmental and parliamentary) should augment what
is currently a highly informal network of interested actors with
some serious investigative and administrative resources that could,
say, establish relevant codes of conduct and mechanisms for monitoring.
7. Conclusion
7.1 Questions of law and human rights are
now central to intelligence governance but oversight requires
that as much attention be given to the working practices of agencies
as to the legal and policy framework within which they operate.
7.2 The pressures on agencies to "deliver
results" and to relax oversight are greatest when security
fears and uncertainties are at their height. Therefore, contrary
to the oft-quoted need to "balance" security and rights,
the need for oversight is actually greater at times such as this
in order to promote effectiveness and prevent abuses of human
rights.
7.3 Intelligence co-operation between nations
and between state and corporate sectors must not become a mechanism
for out-sourcing illegality.
7.4 Evidence of UK collusion in torture
demands that a comprehensive and well-resourced inquiry be conducted
into how, if at all, this was authorised and the consequences
thereof in order to ensure that measures are instituted to prevent
any recurrence.
7.5 The development of security and intelligence
networks between state and corporate actors during the last 20
years has not been matched by appropriate oversight arrangements.
7.6 In order to counter tendencies towards
over-reaction, overseers in the state sector must remain sceptical
of what they are told in the face of the demands of security and
secrecy, and foster relationships with each other, transnational
bodies such as the European Parliament and Council of Europe and
the wider interested community of researchers, journalists, and
NGOs.
23 April 2009
29 Cameron, I, National Security and the European
Convention of Human Rights, (The Hague: Kluwer Law International,
2000) p 17. Back
30
Ashworth A and Redmayne M, The Criminal Process, 3rd edn,
(Oxford: Oxford UP, 2005) pp 36-37 and cf Starmer K et al,
Criminal Justice, Police Powers and Human Rights, (London:
Blackstone Press, 2001) pp 4-5. Back
31
This was the Article of which the UK was found to be in violation
when the ECtHR determined that the operation culminating in the
shooting of three PIRA members in Gibralter in 1988 had been badly
planned and implemented. McCann and Others v UK (1995);
Cameron, op cit note 30, pp 260-62. Back
32
FCO, Annual Report on Human Rights 2008, Cm 7557, March
2009, 96-97. Back
33
HMG, Report of the Official Account of the Bombings in London
on 7 July 2005, HC1087, May 2006, paras 31-37. Back
34
Talking of the Bush Administration's response to 9/11 on Meet
the Press on 16 September, Dick Cheney said, "We'll have
to work sort of the dark side, if you will." Jane Mayer,
The Dark Side, New York: Doubleday, 2008, 9. Back
35
ISC, Rendition, Cm7171, July 2007, para 7. Back
36
Ethan Nadelmann, Cops Across Borders: the internationalization
of US criminal Law enforcement, Pennsylvania: Pennsylvania
State University Press, 1993, 436-57. Back
37
A Presidential Finding was signed on 17 September. Mayer, Dark
Side, 38-43. Back
38
Commission of Inquiry into the Actions of Canadian Official in
Relation to Maher Arar, Analysis and Recommendations, Ottawa:
Minister of Public Works, 2006, 5.1.5, pp 22-26; quote at 24. Back
39
ISC, Rendition, paras 52-88. Note, however, that Mayer
reports the presence of the Head of MI6 at meetings at which 17
September Presidential Finding was discussed, Dark Side,
41. Back
40
ISC, Rendition, 2007, 137. Back
41
ISC Cm 6469, paras 77-78, cited in Rendition, para 27. Back
42
ISC, Rendition, 2007, para 71. Back
43
Dick Marty, Secret detentions and illegal transfers of detainees
involving Council of Europe member states: Second Report,
11 June 2007, Council of Europe Parliamentary Assembly, para 127. Back
44
Steven Bradbury (Office of Legal Counsel, Justice Department)
to John Rizzo, Senior Deputy General Counsel, CIA, Re.: Application
of US Obligations Under Article 16 of Convention Against Torture
to Certain Techniques that May Be Used in the Interrogation of
High Value al Qaeda Detainees, 30 May 2005. http://s3.amazonaws.com/propublica/assets/missing_memos/28OLCmemofinalredact30May05.pdf
accessed 21 April 2009. Back
45
Marty, Secret detentions, paras 75, 168. Back
46
Deborah Avant, The Market for Force, Cambridge: Cambridge UP,
2005, 30-38. Back
47
Christopher Kinsey, "Private security companies and corporate
social responsibility," in Alexandra, Baker and Caparini
(eds) Private Military and Security Companies, London:
Routledge, 2008, 70-86. Back
48
Mervyn Frost, "Regulating anarchy: the ethics of PMCs in
global civil society," in Alexandra, Baker and Caparini (eds)
Private Military and Security Companies, 43-55 at 52-53. Back
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