Jemima Stratford QC’s Advice

Chair of the APPG on Drones Tom Watson has obtained an expert Advice from Jemima Stratford QC on the legality of the reported ongoing GCHQ practice of intercepting ‘internal’ and ‘external’ data in the UK, and the potential availability of that data for use in lethal targeting by the CIA. The trigger for seeking the Advice, with a view to sharing it with APPG members, was reported CIA reliance on NSA surveillance to inform the CIA-operated drone program. It is widely known that GCHQ share data with (and permit interception by) the NSA. The Advice is written on the basis of 5 hypothetical scenarios, based on the newspaper reports of investigative journalists. It provides a detailed review of those scenarios. In summary, the striking conclusions are:

(i) GCHQ is not entitled to intercept mass ‘internal’ contents data between two British residents under the existing legislative framework of Regulation of Investigatory Powers Act (‘RIPA’) in the opinion of the writers;

(ii) RIPA authorises GCHQ to intercept metadata and ‘external’ contents data under RIPA, although this is very probably an unlawful interference of Article 8 (privacy) rights of those affected;

(iii) the executive has retained a largely unrestrained discretion to permit transfer of UK data to the NSA under RIPA;

(iv) RIPA places limited restrictions on the uses to which intercept material might be put, other than its admissibility in court;

(v) a new UK-US bilateral arrangement governing the transfer, storage and use of UK data is the minimum required to protect British citizens and ensure British data and facilities are not used to support activities which would be unlawful in the UK, including drone strikes against non combatants;

(vi) the government is obliged to investigate and prevent UK agents, visiting forces and visiting agents becoming ‘accidental’ accessories to murder under domestic law, where those responsible know that relevant data or facilities may be used to support US drone strikes, properly regarded as unlawful in the UK;

(vii) RIPA has been overtaken by developments in technology since 2000. The key distinction between ‘contents’ and ‘communications’ data is no longer meaningful, given modern internet usage.

The Advice also lends real weight to amendments proposed to the Defence Reform Bill, Visiting Forces Act and RIPA tabled by four peers from the All Parliamentary Group on Drones which will be moved next week on 3rd February in the Grand Chamber. Jemima Stratford QC, advising with Tim Johnston, ends up concluding that the probing amendments might go some way to ensuring that Ministers are informed about data passing through the UK, as well as interception taking place in the UK. This would, in turn, assist the government monitor compliance with UK law, and make informed decisions about the need for an updated multilateral agreement between NATO partners. Chair Tom Watson yesterday submitted the Advice to the Intelligence and Security Committee to contribute towards their ongoing inquiry. It makes an interesting read.

After Noor Khan

This week the Court of Appeal handed down judgment in the case of Noor Khan v The Foreign Secretary. Khan was denied leave to appeal his claim which sought a declaration that a GCHQ official may be liable for under domestic (and international) criminal law for passing ‘locational intelligence’ to the CIA. Liability would arise, Khan argued, where the UK official foresaw a ‘serious risk’ that the information would be used for targeted killing. If the targeted killing took place outside armed conflict, it was tantamount to murder in UK law and the UK official would be ‘encouraging or aiding’ a crime. The key to this part of Khan’s claim was that civilian GCHQ officials would not be entitled to the defence of ‘combat immunity’ for supporting operations outside armed conflict, unlike their military colleagues in Afghanistan.

Khan also sought a declaration requiring the FCO to write and publish a lawful policy on when ‘targeting intell’ could properly be transferred to the US. This seems to have hit a spot: 3 leading QCs were employed by the FCO to defend the claim.

The case rested on the construction of a ‘topsy turvy’ hypothetical scenario: a UK drone operator killing a person in Pakistan. The conduct of the notional principal would fall within the jurisdiction of the UK courts because the operator was a UK national working from the UK. In this way, Khan stayed clear of asking the Court of Appeal to make a finding about the lawfulness of any US act or practice. The case was about the application of UK law to UK officials, not the lawfulness of drone strikes under US law. The Master of the Rolls found Khan’s argument ‘persuasive’ but declined to express a view. Ultimately – whatever the correct legal analysis – the legal fiction created by the claim would give the impression that a UK court was presuming to judge US foreign policy. Without exceptional circumstances, a UK court would not do this.

In its short judgment, the Court of Appeal was careful to distinguish the case of Rahmatullah v Secretary for Defence, and did not make any factual findings to contradict Khan’s claim. This may leave the door open for a less hypothetical case or a different analysis and challenge to data sharing practices.

There may be no appeal, but the Khan case has contributed significantly to the debate on lethal drone use. The 17 March CIA strike in which Khan’s father, a tribal elder, was killed with more than 40 others at a Jirga in Datta Khel, North Waziristan, is now well known as a cautionary tale. The case has shone a spotlight on the UK-US data relationship, and complications that may arise from it. Khan’s request for a published policy – which would require the UK government to face different interpretations of the key words ‘combatant’ and ‘armed conflict’ – has been picked up and developed by others, including Professor Michael Clarke Director of RUSI who called for a declaration on UK-US information sharing at the last APPG meeting on 5 Dec. This call is unlikely to end.

The APPG has invited Noor Khan and other strike victims to speak to APPG members and other parliamentarians next month.

2014 and a new Roadmap for Drones

Drones are here to stay, according to the new US Roadmap on Integrated Unmanned systems, released on Christmas Eve. The Department of Defence (‘DoD) will continue to develop and operate armed and surveillance drone systems over the next 25 years with a focus on rapid deployments to troublespots in South West Asia and, increasingly, the Asia-Pacific ‘theatre’. Whatever this means, the complex environment of Asia – in which US ‘freedom of operation’ is contested and coordination with allies and host nations is required – demands continued use of unmanned systems, say the DoD.

It also demands the development of innovative technical solutions for unmanned systems with a view to reducing manpower. The Roadmap emphasises the importance of increased system, sensor and analytical automation to deliver ‘actionable’ intelligence without, or with significantly reduced, manpower [4.1.5]. This may explain why the term ‘remotely piloted’ has been avoided by the DoD. Options for weapons delivery will be expanded to take advantage of all classes of unmanned systems, for example by adding weaponised platforms on to existing, unarmed drones. This reveals the potential for overlap between surveillance and armed assets and operations. Notably, DoD drones will be set for interoperability with CIA drones [4.2.1]. This will enable integration and facilitate the DoD and JSOC’s greater involvement in the US armed drone program in 2014.

The need for international cooperation in terms of drone research, development and agreeing standards for the interoperability of allied technologies is highlighted in the Roadmap. The ‘active’ UAS program within the Technical Cooperation Memorandum (‘TTCP’) made between the US, UK, Canada, Australia and New Zealand countries gets special mention: the ‘Five Eyes’ UAS program apparently conducts joint experiments on areas which include autonomous C2 and UAS self-protection. Joint programs and interoperability may facilitate the sharing of information, technology, payloads or platforms between the UK and the US. This will need to be watched and questioned by the APPG in 2014.

It is hoped that the Secretary of State for the Defence Philip Hammond will comment on the US Roadmap and the UK government’s response to US plans for extended use of armed and surveillance drones outside Afghanistan with the cooperation of allies. The Minister made a first welcome response to public concerns about UK and US drone use in his article for the Guardian ‘In Defence of Drones’ which addressed UK use of drones in Afghanistan. The article coincided with an initiative to open up the control room at RAF Waddington to selected members of the press for a snap shot view of current UK military operations.

Perhaps more significantly, the Minister commented on future use of UK drones following withdrawal from Afghanistan in 2014. In answer to a question about whether UK drones could be flown in Yemen, he said ‘we have to pursue terrorists wherever they take themselves’. This comment suggests that the Ministry of Defence is considering use of UK military drones to pursue suspected terrorists in ungoverned spaces outside Afghanistan. This may include counter insurgency operations in Yemen or Africa, as predicted by Ben Emmerson QC and Professor Clarke at the December APPG meeting, and may involve collaborative efforts with the US. The Minister may not have had an opportunity to comment on the opposition of the Yemeni Parliament to US drone use or concerns of 2 UN Special Rapporteurs on the Yemen ‘wedding party’ strike, including Special Rapporteur on Torture Juan Mendez, a newcomer to the drones debate. Special Rapporteur Mendez commented that deadly attacks on illegitimate targets may amount to cruel, inhuman or degrading treatment.

In line with his intent to correct any misapprehensions which may exist and promote informed debate, the APPG on Drones will invite the Minister to address the APPG on current and future UK drone use, policy and the law.