Government’s intelligence sharing agreements with US should be protected by secret material in drone strike case

1 May 2012 by Rosalind English

A High Court judge has raised the prospect that national security implications may necessitate the closed material procedure (CMP) in a case being brought against the Foreign Office by the son of a drone strike victim,  the Telegraph reports today.

Mitting J has made a “rare order” that a two-day High Court hearing must take place in which both sides tackle the issue of whether the full case could go ahead in public, or whether it would require a CMP.

Background

On 12 March legal proceedings were issued against the Secretary of State for Foreign and Commonwealth Affairs, on behalf of Noor Khan, whose father was killed last year in a drone strike on a Jirga – or council of elders – in North West Pakistan. The case is highly sensitive because it would involve the disclosure of information supplied by British intelligence agencies to the CIA on the whereabouts of alleged Pakistani militants. “Media reports” quote a GCHQ source saying that the assistance offered to the US authorities was “in strict accordance with the law”. It is that lawfulness which is to be challenged by Khan’s legal representatives. According to Leigh Day’s website, the challenge states

that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.

As CIA and GCHQ employees, are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.

The claimant is not seeking compensation, only a declaration that under British law, members of GCHQ and other civilian agencies who assist the CIA to direct killings overseas are “secondary parties to murder” and also breaking international law as their victims are not directly involved in conflict. In Mitting J’s view, this is precisely one of those cases that cannot be heard at all without the system that the proposed new policy on CMP is to introduce, intended to ensure court cases can go ahead without undermining the security services and the delicate relationship between this country and the US on intelligence sharing and anti-terrorism policies.

This blog has largely opposed the proposals in last October’s Green Paper, as can be seen in our various posts set out below.  On the other hand, anyone who watched Channel 4’s The Plot to Take Down Britain’s Planes last week may appreciate that the balance between the public interest in open justice and the importance of keeping certain intelligence material away from the public gaze should sometimes be struck in favour of the latter.
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