We will only defeat terrorism by upholding the rule of law

Worrying about the execution of Isis men is not a popular cause, so it’s worth spelling out case for scrutiny

Donald Macintyre
Wednesday 23 September 2015 18:54
An Isis fighter, pictured in the militant group's English-language magazine Dabiq
An Isis fighter, pictured in the militant group's English-language magazine Dabiq

On the face of it, Dominic Grieve could not be a more suitable for the job. Grieve, whose appointment as chair of the high-profile Intelligence and Security Committee of Parliament (ISC) was announced last week, is a good lawyer who became familiar, as Attorney General, with the complex legal questions arising from counterterrorism policy. His stand against the Cabinet clamour for withdrawal from the European Court of Human Rights – which almost certainly cost him his government job – reinforced his deserved reputation for having an independent mind.

He will need it if he is going to succeed. Although the ISC is a cross-party group and is lauded as the single body which subjects the intelligence services to parliamentary scrutiny, it is not, in fact, a genuine select committee. For one thing, its members, who are privy to classified information and therefore sign the Official Secrets Act, are nominated by the Prime Minister. It has, in the past, faced serious constraints imposed by the executive. And it has not always, to put it mildly, been as robust about trying to break free of those constraints as it should.

Against this background, the new committee’s work won’t be easy. The most immediate issue on Grieve’s desk is likely to be the drone attack which killed two British jihadis, Reyaad Khan and Ruhul Amin, in Syria on 21 August. The then interim Labour leader Harriet Harman, among others, has already asked for it to do so. Since worrying about the legal and intelligence justification for executing two adherents of Isis is not a popular cause, maybe it’s worth spelling out the case for scrutiny of what the PM freely acknowledged was “a new departure”.

Let’s suppose that the strike was indeed “a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom” under Article 51 of the UN charter, it’s surely right – at least in retrospect – that the basis of such a judgment should be independently examined. That would be true even if there was no ambiguity about the immediate threat the jihadis were posing. For even if you totally trust the present Government to take its decision in the absolute interests of national security, how do you know that a future Defence Secretary or Prime Minister would not be tempted into another such strike in circumstances which might not satisfy such criteria? Such scrutiny is the only available deterrent against such abuse.

How far will the ISC be able to carry out this task? It is now allowed to consider “operational” matters, but only retrospectively, not ones which are “ongoing”, a point that David Cameron has already emphasised in the wake of the drone strike. But what exactly is ongoing? Defence Secretary Michael Fallon has said there might well be more such strikes. Does that mean that the 21 August strike cannot yet be considered retrospectively? So far, Mr Cameron has said that he will discuss only the appropriateness of such an inquiry with Grieve – a reminder of the power he legally wields.

But a wider (and more historic) issue also awaits Grieve’s attention. In 2010, the Coalition Government set up the judge-led inquiry into allegations of UK involvement in the extraordinary rendition and torture or mistreatment of detainees abroad in the aftermath of 9/11. In 2012, the Government stood down the inquiry pending police investigations of possible UK intelligence agency involvement in rendition, including of anti-regime dissidents to Libya. Subsequently the matter was handed for investigation to the ISC. The previous ISC chairman, Sir Malcom Rifkind, promised that the investigation would continue in this parliament, and much of the staff work has. Though too much remains obscure, enough is already known to establish this as one of the darkest chapters of the Blair-Bush era, and, by extension, the history of the ISC, whose 2007 inquiry finding under a Labour chairman that the then Labour government had not co-operated in the rendition of US detainees was found to be severely deficient.

The then Foreign Secretary, David Miliband, was obliged to retract the claim – which the committee had fully accepted – made during Jack Straw’s tenure of the Foreign Office that UK territory had not been used for rendition flights. And the committee accepted that the UK knew nothing of the torture of the Ethiopian Binyam Mohamed, a claim undermined by a 2009 High Court case in which it was shown that UK intelligence had facilitated his interrogation by US agency operatives. Since then there have been substantial new allegations, including from a senior US official, that British-owned Diego Garcia was used as a “black site” for interrogation as well as transit of detainees, post-9/11.

The reason that this matters so much is, incidentally, put rather well in a recent Early Day Motion drawn up by the Tory MP Andrew Mitchell seeking the release from Guantanamo Bay of British resident Shaker Aamer. It asserts that “the defeat of terrorism will only be achieved by upholding the principle of the rule of law”. After a decade or more which has seen an Iraq invasion of doubtful legality, as well as the unlawful detention and torture of detainees, there has never been a more urgent need – at home and abroad – to begin the slow process of re-establishing that much-eroded principle as one of core “Western values” we are supposed to be defending.

That’s why, if the ISC cannot conduct the robust scrutiny of the August drone strike, a judicial mechanism should be established to do it. It’s why the ISC needs to expose the truth about rendition as the better resourced, and considerably more powerful US Senate Intelligence Committee finally did on CIA torture. And it’s why Grieve should agitate for reform that will strengthen the independence of the ISC itself.

Before the last election, a committee under the Labour MP Tony Wright transformed the Select Committees by providing for secret ballots of their members and chairs. For the ISC, he suggested the same – while allowing for the Prime Minister to exercise a veto on the choices on security grounds. Rather than endangering security, it would enhance it by starting to repair some of the damage of the past 14 years.

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