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ABSTRACT
The central objective of democratic governance of intelligence is, through debate and law, to establish public confidence that the agencies work efficiently, effectively and properly. Oversight of intelligence can be seen as a contest between agencies, government and overseers for the control of information. The four interacting dimensions of information control are secrecy, gathering, evaluation and persuasion. This article assesses the oversight performance of the Intelligence and Security Committee (ISC) through the prism of information control in investigating the allegations of UK involvement in torture since 2001. Operating within an overall context of executive dominance, these dimensions constitute a series of filters including what officers tell their managers, what the agencies record, what they tell ministers, what they tell oversight bodies and, finally, what the ISC reports to the public.
Acknowledgements
I thank my fellow panellists at RUSI in December 2019 where an earlier version of this article was presented and also Stuart Farson.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. ‘Oversight’ is ambiguously defined in the Concise Oxford English Dictionary as either ‘an unintentional failure to notice or do something’ or ‘the action of overseeing’ which, in turn, is defined as ‘supervising’; the concern in this article is with the latter (which may well include examples of examining instances of the former).
2. Gill, ‘Of intelligence oversight … ’.
3. See, for example, Born, Johnson, and Leigh, Who’s Watching the Spies, 235–38; Eskens, van Daalen &van Eijk, Ten Standards for oversight; Farson, ‘Establishing Effective Intelligence Oversight Systems’; and Leigh & Wegge (eds) includes country studies from Europe and North America.
4. Aldrich, “Global Intelligence Cooperation versus Accountability”; Blackbourn et al, Accountability and Review, 123; and Gill, ‘Of intelligence oversight and … ’.
5. Wilsnack, ‘Information Control: a conceptual framework … ’.
6. Gill, “Reasserting Control: recent changes … ’ esp. 314–17.
7. Church, Final Report ix note 7. Emphasis added.
8. Gill, “Security Intelligence and Human Rights,” 98–101.
9. See, for example, Defty, ‘Coming in from the Cold’.
10. Gill, ‘Reasserting Control’; Robertson, ‘Recent reform of intelligence in the UK’.
11. Intelligence and Security Committee (ISC), UK Lethal Drone Strikes in Syria, para.72. (All ISC publications are available at https://isc.independent.gov.uk/publications/.
12. ISC Press Releases: December 19, 2013, April 27, 2017.
13. ISC, Annual Report for 2019–21, para. 61.
14. Michael Mates, speaking on Newsnight, BBC2, May 19, 2009.
15. ISC, Report into the London Terrorist Attacks on 7 July 2005 In April 2007 five men were convicted of a bombing plot (Operation Crevice). It emerged during their trial that they had been in regular contact with two of the men who had carried out the 7/7 bombings in July 2005. Walker, ‘Fertiliser bomb plotters … ’.
16. ISC, Could 7/7 Have Been Prevented? para.11.
17. Cf Blackbourn , Accountability and Review, 149–52 regarding the generally low levels of trust in overseers of counter- terrorism that they found in their interviews.
18. The ISC did note that ‘ … on 7 February 2002 the US President stated as US policy that the Geneva Conventions did not apply to the conflict with Al Qaeda’. ISC, The Handling of Detainees, 2005, para 51.
19. Vladek & Walker, “Detention and interrogation” … ’.
20. For example, Blakely & Raphael, British Torture, 249–51. Cobain, Cruel Britannia; Newbery, Interrogation, intelligence and Security.
21. O’Connor, ‘British State Torture’.
22. Newbery, Brecher, Sands & Stewart, ‘Interrogation, intelligence and the issue of Human Rights’.
23. ISC, The Handling of Detainees, 2005, para. 26. After the emergence of further documents relating to internment years later, the Irish Government asked the ECtHR to revise this judgment but the court declined to do so in 2018. Bowcott, ‘Human rights judges … ’. In December 2021 the UK Supreme Court has also found that the Police Service of Northern Ireland (PSNI) acted unlawfully by deciding not to proceed with an investigation into the torture of 14 men in the 1970s. https://www.amnesty.org.uk/press-releases/northern-ireland-supreme-court-finds-police-wrong-not-investigate-torture-hooded-men.
24. Edelman, Symbolic Uses of Politics, 1964.
25. Blakely & Raphael, ‘British Torture’, 251–60 (quote at 251). See also Gibson, The Report.
26. The ISC’s own more detailed timeline is at HC1113 Appendix B.
27. ISC, The Handling of Detainees 2005, 29–32.
28. ISC, Annual Report for 2007–08, 2009, para.164.
29. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018.
30. ibid, paras 146–61.
32. ISC Annual Report for 2010–2011, paras 208–17; Patrick Wintour, ‘Guantánamo Bay detainees … ’.
33. The 27 questions can be found in Annex A of The Report of the Detainee Inquiry https://www.therenditionproject.org.uk/documents/RDI/131219-Detainee-Inquiry-Report.pdf.
34. ISC Press Release December 19, 2013; HC1113, p.8, para.8.
35. Statement on the work of the Committee since the Annual Report 2015–16, April 2017.
36. ISC, Detainee Mistreatment and Rendition 2001–2010, Appendix B, 121–22 details the unsuccessful efforts of the ISC.
37. ISC, Detainee Mistreatment and Rendition 2001–2010, 1, emphasis added.
38. ISC, Detainee Mistreatment and Rendition: current issues.
39. The full title is Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees and can be found at Annex B of ISC, Detainee Mistreatment and Rendition: current issues, HC1114, June 2018.
41. A legal action nongovernmental organisation. See https://reprieve.org/uk/about-us/.
42. The Justice and Security Act 2013 introduced new ‘closed material procedures’ by which sensitive information could be kept secret during trials. See, for example, Jenkins, ‘The handling and disclosure … ’.
43. Reprieve et al and the PM [2021] EWCA Civ 972.
44. Mushrooms are cultivated by being kept in the dark and fed shit.
45. ISC, The Handling of Detainees, 2005, para.55.
46. Gibson, The Report, 51. See also Gaskarth, Secrets and Spies, 60–61.
47. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, para.68.
48. Dixon, Law in Policing. Gaskarth discusses this issue and recent agency attempts to reform UK agencies’ culture, Secrets and Spies, 115–21.
49. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, 71 para 154. The ISC also says: ‘157. It is further worth noting that when the Prime Minister wrote to the ISC on 6 September 2004 with the results of the staff surveys, only the SIS survey was mentioned, and then only the one further hooded interview was cited: none of the other incidents referred to by SIS, MI5 or Defence Intelligence staff was reported’.
50. The principle whereby an agency will not divulge to a third party any intelligence received from another agency without that agency’s permission.
51. Binyam Mohammed and the Secretary of State for Foreign and Commonwealth Affairs, EWCA Civ65 Case no. T1/2009/2331, 2010, para. 168.
52. ISC, Letter to the PM, 2009, para.30. Gibson identified two specific reporting and recording issues, 2013, pp 91 and 93. In his last novel, John Le Carré, describes how Proctor, an SIS counterintelligence officer, seeks information from two former case officers: ‘And one very important thing from the outset: please don’t concern yourselves with what you think we have on file. Agent files, as you two know better than most, are famous for what they don’t say. And the old files are even worse than the new ones. Most of what goes on in the field never gets to the paper stage at all, which is probably just as well for all concerned’. Silverview, 89.
53. ISC, Annual Report for 2008–09, 2010, para. 150 and p.45fn138. The government response to this was predictably anodyne: Government Response, 2010, 7.
54. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, 82.
55. Sabbagh, ‘Whitehall held secret review … ’ Also, personal information from Reprieve.
56. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, 66, para. 144.
57. ibid, 69, para. 150. Gibson also raised questions as to both what ministers were told and whether they should have asked for more information, 2013, p.101.
58. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, 46.
59. Ibid, 53.
60. Mayer, The Dark Side, 38–43.
61. Ibid, 77.
62. Ibid, 101.
63. Ibid, 4. Yet note that Lady Justice Hallett described as ’unfortunate‘ the failure of MI5 to correct inaccurate information they provided to ISC in relation to the 7/7 bombings. Gaskarth, Secrets and Spies, 64–65.
64. ISC Letter to the PM 2009, 7.
65. Ibid, 22.
66. Ibid, 23–31.
67. Cited in Gaskarth, Secrets and Spies, 64–65.
68. ISC Detainee Inquiry – press release, December 19, 2013. Cf. also Gaskarth, Secrets and Spies, 66–73.
69. ISC, Rendition, 2007, paras 46–48.
70. Foreign Affairs Committee, Third Report, 2006–07, paras 57–80.
71. Joint Committee on Human Rights, The UN Convention, paras 126–131.
72. Gill, ‘The Intelligence Security committee … ’ fn42. It should be noted that since the 2013 reforms ISC is empowered to publish its own reports rather than depending on the PM to do so. The discussion with the agencies over redactions still takes place.
73. Cf. ISC, Rendition, 2007, 54.
74. ISC Letter to the PM 2009, para.7.
75. The Guardian 11/08/09 2; http://news.bbc.co.uk/today/hi/today/newsid_8192000/8192659.stm.
76. Joint Committee on Human Rights, Allegations of UK complicity. See also Leigh, ‘Rebalancing Rights … ’. esp. 725–30.
77. Bochel, Defty, & Kirkpatrick, ‘New Mechanisms’. In December 2014 the US Senate Select Committee published the executive summary of its report on CIA detention and interrogation and there were suggestions that some redactions had been made at the request of UK agencies to protect themselves. In February 2015 ISC issued a statement to the effect that it had inspected the relevant MI5 and MI6 files and where redactions had been requested it was because of ‘national security’ and not related to any UK involvement in mistreatment. ISC, Statement on Redactions, 2015.
78. Cobain & Norton-Taylor, ‘Note in Tony Blair’s handwriting … ’. The Ministry of Defence has settled ‘low tens of thousands’ of civil claims resulting from breaches of the Geneva Conventions and Human Rights Act in Afghanistan and Iraq. Sabbagh, ‘MoD has settled.
79. ISC, Detainee Mistreatment and Rendition 2001–2010, 2018, 44 para. 90.
80. Diego Garcia is UK territory containing a US airbase. Since 2002 there had been allegations that US rendition flights had refuelled there or that people may have been detained there. The PM denied this until 2007 (See ISC, Annual Report for 2005–06, Cm 6864, 2007, para. 197). However, the Foreign Affairs Committee investigated further and found that this denial was false. Foreign Affairs Committee, Overseas Territories, 2008, para.70.
81. ISC, The Handling of Detainees 2005, para.64.
82. ibid para. 103.
83. ISC, Letter to the PM, para 7, March 17, 2009, and see further below.
84. ISC, Annual Report for 2008–09, 2010, paras.146–63.
85. ISC Annual Report for 2010–2011, 2011, 60–65.
86. The issue is explored extensively in Born, Leigh & Wills, (eds.) International Intelligence Cooperation.
87. Blakeley & Raphael, ‘Accountability, denial and the future-proofing of British torture’, 699–702.
88. Blackbourn et al, Accountability and Review, 135.
89. ISC, Annual Report for 2019–21, 2021, Annex A, para. 20b.
90. Hennessy, ‘From Secret State’; Omand, Securing the State, 9–10.
91. Aldrich & Richterova, ‘Ambient Accountability’.
92. Zuboff, The Age of Surveillance, 11.
93. Lester, When should state secrets, 206–7.
94. Gill, Of Intelligence Oversight ….
95. ISC Press Release, 2018. This also criticises the government for its failure to develop policy in relation to rendition.
96. IPCO letter to PM, June 12, 2019. Blakeley & Raphael, ‘Accountability, Denial … ’ 704–07 criticise these as ‘future-proofing’ torture. IPCO’s 2020 Report includes his oversight of The Principles.
97. Aldrich, ‘Global Intelligence Cooperation’; Blackbourn et al, Accountability and review, esp. chap 3; Gill, ‘Of intelligence oversight’.
98. Unfortunately, there is a potential structural flaw in the design of this Office in that it is responsible for both authorising intelligence agencies’ applications for warrants and then overseeing that process. To handle the much greater number of authorisations required by law enforcement and other government departments, an independent Office for Communications Data Authorisations (OCDA) has been established with over 100 staff located in Manchester and Birmingham. The IPOC remains responsible for OCDA. See IPCO Annual Report for 2019, chaps 5 and 6.
99. IPCO, Annual Report 2019, paras 8.45–8.54, quote at 8.53. 2020 Annual Report followed this up at paras. 9.29–9.40. https://ipco-wpmedia-prod-s3.s3.eu-west-2.amazonaws.com/IPC-Annual-Report-2019_Web-Accessible-version_final.pdf.
100. But it was reported in August 2022 that a British Sikh campaigner, Jagtar Singh Jobal, was detained and tortured by Indian authorities after information was passed to them by MI5 and MI6. Weaver, ‘British Sikh activist tortured’.
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Peter Gill
Peter Gill was previously Professor of Politics and Security at Liverpool John Moores University (2004-2007) and Research Professor in Intelligence Studies at the University of Salford (2007-2009). He was honorary fellow at University of Liverpool 2009-2016 and University of Leicester 2016-2019. He was named Distinguished Scholar by the Intelligence Studies Section of the International Studies Association in 2022. He wrote Policing Politics (Cass, 1994), Rounding Up the Usual Suspects (Ashgate, 2000) and Intelligence Governance and Democratisation: a comparative analysis of the limits of reform (Routledge, 2016). He has also co-authored Intelligence in an Insecure World (3rd edition, Polity, 2018) and Democratization of Intelligence (Routledge, 2015).