The Detainee Report and the UK Government Flouting FOIA Law

Back in September, as I explained in a previous post, I filed a Freedom of Information Act (FOIA) request with the UK government in an attempt to obtain a long-withheld report on British spies' complicity in torture and extraordinary rendition. The government repeatedly ignored my requests — refusing to even acknowledge them, as obligated under the law — but finally published the report in December.

As I suspected it would, the so-called 'Detainee Inquiry' report shined a light on the dubious involvement of the UK's security services in brutal interrogation tactics and kidnapping methods carried out by US government operatives in the aftermath of the September 11 attacks. British agents, it found, were under no obligation to report breaches of the Geneva conventions and turned a "blind eye" to the torture of detainees held in foreign prisons.

The report was put together by the Detainee Inquiry as a preliminary report and, unfortunately, it only scratched the surface. Headed by retired judge Sir Peter Gibson, the inquiry was originally supposed to dig deep into the allegations of complicity in the abuses. However, it was postponed in 2012 amid controversy because the government said that it clashed with ongoing police investigations into some of the same cases. Justice Secretary Ken Clarke promised that an independent judge-led inquiry would continue in time, but the government suddenly pulled a policy reversal in December and now says the issues will be dealt with (or should I say, swept under the rug) by the largely toothless parliamentary intelligence and security committee — a move that has been strongly criticised by human rights groups, lawyers, and two United Nations special rapporteurs.

Aside from pointing to substance of the Gibson report, though, I wanted address something else here: that is, he dismal conduct of the government in ignoring my original request to obtain it. The Cabinet Office repeatedly failed to respond to my inquires for a period of about five months, even after the Information Commissioner's Office (ICO) got involved. (The ICO is the public body that enforces access to information legislation in the UK.) Under the terms of the FOIA law, the government should have responded to my initial request within 30 days. Instead, it chose not to respond at all — not even an acknowledgement; nothing. I've never experienced anything like that, and I have submitted quite a lot of FOIA requests in my time.

It seemed that the Cabinet Office was clearly flouting its legal obligations, so I decided to submit a formal complaint with the ICO. Last month, the ICO issued a "decision notice" in my case (see below), finding in my favour that the government broke the law under section 10 of the Freedom of Information Act by ignoring my request. The ICO threatened to pursue contempt of court action against the government in the High Court if it did not contact me within a further 35 days. Unsurprisingly, earlier this month, about a day before the deadline was due to expire, the Cabinet Office finally responded — claiming "oversights" were the cause of the long delay while having the cheek to open its letter by referring to my "recent" FOIA request. The request was submitted half a year prior.

Cabinet officials were contacted on several occasions about my request over this six-month period; they confirmed to the ICO over the phone that they had received it, and were then warned about potential "enforcement action." Yet they continued to not respond to me. It was not until the government was formally threatened with contempt in the decision notice that it acted. And by then, the Detainee Inquiry report that I was originally seeking had been released publicly anyway.

I have no idea whether the government deliberately ignored my request in a bid to delay releasing the report, so that it could release it later on its own terms. But frankly that does not seem like a far-fetched possibility, especially given that some public bodies, like London's Metropolitan Police, have admitted treating FOIA requests from journalists as "high risk" — even though all requests are supposed to be treated "applicant and motive blind." Either way, whether the failure to respond was calculated or just down to total incompetence, I have certainly not come away from this debacle with a sense that the government cares much about fulfilling its legal responsibilities in the realm of transparency.

For that reason, there is a satisfaction in seeing the government get reprimanded by the ICO for its unlawful conduct in this case. But ultimately there is a kind of depressing futility about the finding. The decision notice will go against the government — damaging the Cabinet Office's FOIA credentials with the Information Commissioner, especially if other cases such as this continue to stack up. (The Cabinet could be placed on the ICO's "monitoring programme" if it keeps egregiously flouting its FOIA obligations.) However, that doesn't really count for much in practice. I would like to see the ICO given much stronger powers to enforce compliance with FOIA law — the power to dish out heavy fines for flagrant violations and inexplicably extreme delays in responding to people. Otherwise it seems highly likely that the government and other public bodies will continue to be content to ignore requests whenever it suits them to do so.

UPDATE, 27 March 2014: As a commenter below has pointed out, it turns out that the Cabinet Office has in fact already been placed on the "monitoring programme" by the Information Commissioner's Office after "serious shortcomings" were identified in its responses to freedom of information requests. The ICO announced in January, while my complaint was still ongoing, that it would be examining the Cabinet's responses to requests received between 1 January and 31 March 2014. The ICO claims that "failure to show signs of improvement during this period may result in enforcement action."

Jack Straw, MI6, and Extraordinary Rendition

There was a very interesting interview aired this evening on Channel 4 News with former UK foreign secretary Jack Straw, which touched on the British government's role in the Iraq War and alleged complicity in kidnappings and torture.

First, some important context.

In 2004, a Libyan Islamist militant anti-Gaddafi fighter Abdel Hakim Belhadj and his pregnant wife were abducted at a Bangkok airport and "rendered" to Libya by American agents. Belhadj was taken to one of Gaddafi's prisons and says he was subjected to torture.

At the time, British government officials were publicly denying any role in so-called "extraordinary rendition" — the practice used frequently by the United States under the George W. Bush administration involving kidnapping terror suspects and taking them to secret locations in third countries where they were sometimes brutally interrogated. But amid the revolution in Libya in 2011, a trove of classifed documents were found during the raid of a government office revealing British spy agency MI6 had in fact played a role in rendition — providing crucial intelligence that resulted in Belhadj being handed over to Gaddafi.

MI6 did not deny involvement when the documents were discovered: instead, UK government sources insisted the agency's actions were part of "ministerially authorised government policy." Then, in April last year, the Sunday Times reported that Jack Straw — foreign secretary between 2001 and 2006 — had been forced by MI6 to admit he had signed off on the secret rendition of Belhadj.

A few days after the Sunday Times report, Belhadj, who is now a military commander in the new Libya, launched legal action against Straw for alleged complicity in illegal rendition and torture.

Now, to the interview.

Tonight, on Channel 4 News, Straw made some eyebrow-raising statements to reporter Alex Thomson in light of the above. Previously he has declined to comment on the Belhadj case, and he told Channel 4 that he wouldn't discuss specifics. But he did make several short remarks that seem significant:

Thomson: It seems extraordinary to have to ask this question... but is the kidnapping and torturing of people by nation states wrong?

Straw: Of course it's wrong and we had no part in that.

Thomson: Are you sure we had no part in it?

Straw: Absolutely. It is wrong. It is absolutely wrong for any of that to have happened.

Thomson: And you are sure that the UK government had no part in it, that's what you just said?

Straw: Well, I'm absolutely sure that I had no part in this, let's just be clear about this OK, and there is going to be a full-scale judicial-led inquiry on the wider issues.

So Straw was clear. "I'm absolutely sure that I had no part in this," he said. Here is what the Sunday Times reported last year:

JACK STRAW, the former Labour foreign secretary, admitted that he had approved the secret rendition of a terrorist suspect to Libya after MI6 showed him evidence proving he had signed off the operation, well placed sources say.

Straw, who faces questioning by police over claims by Abdel Hakim Belhadj that he was tortured in a Libyan prison after being seized in 2004, was confronted by Secret Intelligence Service (MI6) officers after publicly appearing to deny he had authorised rendition.

Asked about Britain’s rendition policy during an interview on BBC Radio 4 last autumn, Straw said: “The position of successive foreign secretaries, including me, is that we were opposed to unlawful rendition, opposed to torture or similar methods and not only did we not agree with it, we were not complicit in it, nor did we turn a blind eye to it."

According to well-placed sources, within days of those comments MI6 officers met Straw. “They reminded him [Straw] that he had signed off on it. He was shown evidence and [then] he did accept that he had signed off on the rendition," said one insider.

Straw has repeatedly declined to comment publicly on the Belhadj case. This weekend a spokesman for him said: “I think that you will readily understand that while an investigation is pending, it is not appropriate for Mr Straw to respond to queries like yours."

And here is a timeline of the key events:

6-8 March 2004: Abdel Hakim Belhadj and his wife Fatima Bouchar are abducted at a Bangkok airport and flown to one of Gaddafi's prisons in Libya.

13 December 2005: Jack Straw, then foreign secretary, tells MPs in response to concerns about rendition: "Unless we all start to believe in conspiracy theories and that the officials are lying, that I am lying, that behind this there is some kind of secret state which is in league with some dark forces in the United States, and also let me say, we believe that Secretary Rice is lying, there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop, because we have not been."

4 September 2011: Documents are found by Human Rights Watch inside the abandoned office Gaddafi's former intelligence chief, Moussa Koussa. One file contained hundreds of secret letters and faxes that UK spy agency MI6 and US spy agency the CIA had sent to Koussa, some revealing "evidence that British intelligence agencies mounted their own 'rendition' operation in collaboration with Muammar Gaddafi's security services." One document showed MI6 counter-terror chief Mark Allen boasting to Koussa about helping render Belhadj in 2004. “The intelligence was British," Allen wrote, adding that assisting in rendering Belhaj by providing information about his movements was “the least we could do for you and for Libya."

5 September 2011: Straw tells BBC Radio 4 in response to the discovery of the documents: “The position of successive foreign secretaries, including me, is that we were opposed to unlawful rendition, opposed to torture or similar methods and not only did we not agree with it, we were not complicit in it, nor did we turn a blind eye to it."

8 April 2012: Extensive details on the rendition of Belhadj and his wife emerge in a special report published by the Guardian. It opens: "Just when Fatima Bouchar thought it couldn't get any worse, the Americans forced her to lie on a stretcher and began wrapping tape around her feet. They moved upwards, she says, along her legs, winding the tape around and around, binding her to the stretcher. They taped her stomach, her arms and then her chest. She was bound tight, unable to move."

15 April 2012: The Sunday Times reports that following Straw's Radio 4 appearance in September 2011, officers from MI6 met with him. A source told the newspaper: "They reminded him [Straw] that he had signed off on it [the rendition of Belhadj]. He was shown evidence and [then] he did accept that he had signed off on the rendition."

18 April 2012: Belhadj launches legal action against Straw over alleged complicity in illegal rendition and torture.

14 March 2013: Straw claims in an interview aired by Channel 4 News that he is "absolutely sure that I had no part in this [extraordinary rendition and torture]."

*****

It doesn't take a genius to see that something does not add up here. There are clear inconsistencies between statements made publicly by Straw and the secret documents, and Straw's Channel 4 interview today contradicted both the secret documents and the claims published by the Sunday Times. The long-delayed judge-led inquiry into the UK's involvement in rendition cannot begin soon enough.

*****

UPDATE, 4 April 2013: It is reported that Straw and former MI6 spy chief Mark Allen say "they cannot respond to allegations of conspiracy in the torture of a prominent Libyan dissident [Hakim Belhadj], pleading the need to protect official secrets." Court documents seen by the Guardian show the former foreign secretary is arguing that the law means he "can neither confirm or deny [MI6] operations," claiming he cannot plead in the case without "causing real harm to the public interest."

However, Straw does explicitly deny misleading parliament in 2005 with his statement that Britain had not "been involved in rendition full stop." Straw claims, according to the Guardian's report, that:

it was 'readily apparent' ... that the committee at the time was discussing 'extraordinary rendition' — that is, rendition specifically carried out for the purposes of torture.

This denial strikes me as tenuous in the extreme, because when you read Straw's full 2005 statement to the parliamentary committee it is not at all clear that when he is talking about rendition he is only talking about rendition in the context of torture. Indeed, he even says at one point that "rendition is a term of art which covers a variety of activities," before going on to add: "there simply is no truth in the claims that the United Kingdom has been involved in rendition full stop, because we have not been." Of course, we now know that the UK was involved in rendition, at the time when Straw was the foreign secretary and thus the responsible minister.

*****

UPDATE II, 22 December 2013: A long-delayed UK government report on British spy agencies' complicity in rendition and torture is finally released on 19 December. The report finds that MI6 turned a "blind eye" to the torture of detainees and was not under any obligation to report breaches of the Geneva Convention. In response to the publication of the report, Jack Straw issues yet another denial, saying in a statement to parliament:

as Foreign Secretary, I acted at all times in a manner that was fully consistent with my legal duties and with national and international law, and that I was never in any way complicit in the unlawful rendition or detention of individuals by the United States or any other state.

The following day, on 20 December, the UK High Court rejects Abdel Hakim Belhadj's rendition and torture case against the government, which Straw was reported to have signed off on. Astonishingly, the judge says that while Belhadj appears to have a "potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition," the case cannot proceed because pursuing it would "jeopardise national security." Belhadj is now trying to appeal against the decision.

*****

UPDATE III, 12 November 2015: Citing ongoing Supreme Court proceedings, The Guardian reports that Straw and former MI6 spy Sir Mark Allen "could avoid prosecution over complicity in the rendition and torture" of Belhadj and his wife by claiming immunity in the case.

Surveillance, Britain's Secret Agencies, and Drowning in Data

I was speaking to someone today about this, and it occurred to me that it is a piece of information that is not widely known but should be.

Every year in Britain, there is an official report that comes out detailing the activities of the UK's spy agencies — MI5, MI6 and GCHQ. It is authored by a group of politicians who function as a kind of oversight authority, under the name the Intelligence and Security Committee.

In this year's report, published in July, I noticed a section of particular interest in light of new proposals for more surveillance powers in the UK. The second paragraph is what is important here — it is a comment made by Jonathan Evans, chief of domestic security agency MI5.

The Security Service is undertaking a number of major projects covering estates, business continuity, core IT systems and improving its digital investigative capabilities. A notable success during the reporting period was the completion of the Digital Intelligence (DIGINT) programme, which aimed to improve systems for the collection and analysis of intelligence material gathered electronically. The Director General explained:

"One of the things that really drove us on the investment of DIGINT was a discussion where the relevant directors explained that actually, of all the material that we’ve caught, over half was not being processed. Now, as an intelligence organisation, that’s a nightmare. I mean, quite frankly, I would rather not have the intelligence at all and miss something than have the intelligence and not actually having processed it… We have made real progress on that, and I’m very proud on DIGINT." (Emphasis added)

What this comment suggests, for the sake of clarity, is that the UK's spy agencies in recent years have been mining and storing quantities of electronic data — or "digital intelligence" — so large that they have not been able to analyse it. The data, most of it I would expect is mined from the internet, has probably been gathered and then left to sit and gather digital dust in a secret storeroom somewhere. The claim from Evans in the above quote is that MI5 has worked to address the problem as part of a new programme, which presumably involves a great deal of automated analysis. But the statement also illustrates how new surveillance powers currently being proposed in the UK could pose problems for the UK if the security services are already near a point where they are drowning in data.

There tends to be two main schools of thought within the intelligence community. Some believe that targeted surveillance of specific individuals and groups is the best method, because it provides information that can be dissected and acted upon fairly quickly by human analysts. The other school of thought, and the one which seems to be prevailing, is that a kind of dragnet surveillance is superior. What this entails is gathering huge quantities of data based on key words, locations, phrases, and then mining through it to find anything useful. From a rights and civil liberties perspective, targeted surveillance is clearly more attractive because it is likely to involve much less intrusion of innocent individuals' communications. But rights and civil liberties do not appear to be high on the agenda at our secret agencies, and so what we get is something closer to the dragnet option.

I should add that surveillance in the UK is not without regulation. To intercept domestic communications, police and security services require ministerial authorisation, and must show that any interception is in the interests of national security, safeguarding economic well being, or to prevent and detect serious crime. That said, these justifications are fairly broad, and there were 2,911 interception warrants granted in 2011 — but any one warrant can cover countless individuals, so we actually have little idea how many people had their communications snooped on. (Also, to monitor content posted on social networks and other "open source" websites, there are no laws or restrictions at all. So websites like Facebook, Twitter and Foursquare are all fair game for the likes of MI5's "DIGINT" team to gather data from.)