Stroebele in parliament: surveillance and drones

Hans-Christian Stroebele, German MP and longest serving member of the Parliamentary Oversight Committee which monitors the German Intelligence Services, visited Parliament yesterday to kick start ‘cross party, EU dialogue about the spying scandal’. His particular concern was reported surveillance from the British Embassy in Berlin and UK complicity in US telephone interception and mass data transfer via fibre optic cables and a communications hub in the UK. That hub is RAF Croughton, described as a ‘relay centre for CIA clandestine and agent communications’ by the Independent, and the same UK base which reportedly supports the US drone programme in Yemen via Djibouti. RAF Croughton has been the subject of a series of PQs by members of our APPG and a letter to William Hague by Chair Tom Watson calling for investigation and a statement of policy on use of the base.

Stroebele’s view was that UK complicity in either US tapping of Angela Merkel’s phone or the US armed drone programme would be unlawful – and a crime – in German law. As a democracy and member of the EU, the UK government must respond to the substantive allegations. On drones, he said: ‘it is a criminal case to kill someone – targeted killing – and aiding and abetting would be a criminal offence in Germany’. On surveillance and the transfer of data, he said: ‘we are of the opinion that it is an infringement of EU laws that the UK is allowing fibre optic cables in the South of England to be used in order to transfer this information from Germany to North America.’ In the absence of acknowledgement, investigation or the enforcement of restrictions so far, Stroebele has submitted a motion to the German government for initiation of an infringement procedure of EU laws against the UK.

The drones debate is linked to the wider debate on mass surveillance in 3 key respects. First, identical UK bases, communications facilities and practices are used to support both US data transfer and drone programme as demonstrated by the Merkel/RAF Croughton episode.

Secondly, it offers a striking example of potential abuse of surveillance data gathered by our and guest intelligence services in that data may end up being used to support an activity which would be prohibited under UK law. Review of documents disclosed by Edward Snowden indicates a high level of support provided by the NSA Counter-Terrorism Mission Aligned Cell to the CIA in targeting suspects, and GCHQ shares data with the NSA through the Tempora programme.

Thirdly, we know that 11 domestic state agencies have permission to fly drones in the UK, although the use to which these surveillance drones are being trialled or put is not clear yet, partly because there is no requirement for individual police forces or other bodies to report to the Home Office and police forces tend to cite the s23 ‘security body’ exemption to Freedom of Information Requests.  

In the wake of these claims, Germany has also reportedly suspended its troubled drones programme pending a thorough review of ‘all associated civil and constitutional guidelines and ethical questions.’ According to Der Speigel, the Social Democrats and Conservatives are in discussion about issuing a statement condemning targeted killing by the US. The draft agreement between the Social Democrats and Conservatives obtained by the newspaper states: ‘we categorically reject illegal killings by drones. Germany will support the use of unmanned weapons systems for the purposes of international disarmament and arms control.’ The issue of a clear statement on the law and policy concerning drone use by the German government may serve as an excellent model to other EU states as they define their position, especially those wishing to rebuild German trust. Meanwhile in Brussels this week, EU Defence Ministers have instructed the European Defence Agency to study the military requirements and costs of an EU surveillance drone.

Underpinning the Stroebele meeting is increasing concern that the intelligence agencies are operating outside their constitutional mandate. Stroebele himself visited Snowden last month to discuss the possibility of the whistleblower giving evidence in Berlin. Stroebele says this could happen if the majority of MPs voted in favour: the debate on how to investigate is well under way in Berlin. In the UK, the ISC review of the legislative framework governing intelligence agencies’ access to information has been extended to consider some broader questions concerning the balance of privacy and security. This is a welcome start. It is hoped that the ISC may consider use of its new power to examine operations at RAF Croughton under s2(1) Justice and Security Act 2013. However the ISC review will take place almost exclusively in private and the hands of the PM-nominated Committee are tied in a number of respects.The debate in Parliament on how to supplement the ISC review has only just begun.

Striking Timing

Aside

Hard on the heels of 4 major international reports which fortify calls for increased transparency in the use and impact of armed drones, the UK Information Tribunal (‘IT’) has rejected an appeal by Chris Cole of Drone Wars against the Ministry of Defence and  Information Commissioner (‘IC’). Chris Cole sought ‘bare bones’ information under the Freedom of Information Act (‘FOIA’) on each weapon launched by RAF Reapers in Afghanistan as part of the ISAF coalition: the date or month, number, province and whether the strike was pre-planned (‘daily tasking’) or not (‘dynamic tasking’). The IT, following both open and closed hearings, robustly rejected the appeal. It found the exemption at s26 (10) (b) engaged (‘capability, effectiveness or security of relevant forces’) and the public interest in maintaining the exemption was readily made out. The IT then went further than the IC had done, finding that the information sought would not inform legal or moral considerations of the public debate. This is harsh: the Information Commissioner himself had accepted that the information sought would provide a clear insight into how UAVs were used by British forces.

The significance of this appeal in the public debate is three fold. First, FOIA is a primary source of material when there is little information publically available and no higher level overarching policy on drone use in the UK. The appeal is the first of its kind on UK drone use.

Secondly, the ‘bare bones’ information sought by Cole is a prerequisite to assessing whether the requirements in international law for transparency have been met, including those which ensure evaluation of civilian impact, investigation of alleged violations and redress for civilian victims. If no basic data is available on drone weapon release, the likelihood of obtaining accurate data to assess precision and impact is minimal.

Thirdly, Cole’s appeal hearing reveals the practical difficulties of closed hearings in which the government may adduce secret evidence.The key factor in the appeal seems to have been the closed evidence of a UAV Squadron-Leader drone operator who was said to identify specific harm that disclosure of the material sought would cause. Unusually, an email was available to the tribunal which revealed the US had been asked to find a suitable representative to give evidence on the effect of disclosing the material with a view to strengthening the MOD’s case for non disclosure. This email reveals the MOD’s approach to adducing ‘expert evidence’ to be given behind closed doors and therefore not open to challenge in the usual way. Although the IT is inquisitorial rather than adversarial, it is suggested that closed hearings may compound the already significant problems faced by interested parties seeking transparency in drone use.

More striking timing: today the Pakistan MOD has reportedly admitted that low figures on civilian casualties sent to Parliament following the return of the PM Nawaz Sharif from visit to the White House were ‘wrong and fabricated.’ The claim was that only 3% of 2227 people killed since 2008 were civilians and none had been killed in 2012 or 2013 – a stark contrast to those approved by the Peshawar High Court earlier this year. ‘It seems the figures changed with the change of circumstances, demands and requirements’ commented an official at the Foreign Affairs Ministry. It is to be welcomed that the Pakistan MOD intend to correct the mistake. Although in Pakistan, not Afghanistan, this episode is no distraction; it underlines our need for accurate public information on the criteria for targeting, impact and the investigation of alleged violations. As the Special Rapportuer on Counter-Terrorism and Human Rights Ben Emmerson QC has emphasised in his interim report, accurate information is necessary to ensure meaningful oversight and accountability for violations of international law.