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Durham E-Theses Durham E-Theses The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition. MCDONALD, ALICE,MARGARET How to cite: MCDONALD, ALICE,MARGARET (2012) The oversight of the UK Intelligence and Security Services in relation to their alleged complicity in Extraordinary Rendition. , Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/5926/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 ‘THE OVERSIGHT OF THE UK INTELLIGENCE AND SECURITY SERVICES IN RELATION TO THEIR ALLEGED COMPLICITY IN EXTRAORDINARY RENDITION’ Alice McDonald Abstract Allegations that the UK Secret Intelligence Service and Security Service were complicit in extraordinary rendition in the “War on Terror” raise concerns about the effectiveness of the existing UK intelligence oversight framework. This thesis analyses the response of oversight institutions to the allegations, and considers their ability to provide meaningful intelligence oversight, both individually and holistically. It considers an oversight framework based on the separation of powers, in which the state institutions have complementary roles. This thesis argues that the existing legislative oversight framework is outdated and that although due weight should be afforded to national security concerns, the current balance lies too far in favour of the executive. Both the Intelligence and Security Committee (ISC) and judiciary require greater powers to provide meaningful oversight. There is also an increasing role for civil society and transnational organisations, especially given the difficulties international intelligence cooperation poses for domestic intelligence oversight. The thesis considers: (1) the legislative oversight framework and law relating to extraordinary rendition; (2) the global intelligence landscape in which the UK intelligence and security agencies operate, and effect of increasing international intelligence cooperation; (3) executive oversight and the relationship between the executive and the UK agencies; (4) the structure and powers of the ISC, and its reports concerning extraordinary rendition; (5) the role of the judiciary within intelligence oversight, and judgments made in the context of extraordinary rendition; (6) the increasing role for non-traditional actors, including Non-Governmental and Transnational Organisations and the Press. 1 Word Count: 40,214 inclusive of abstract and footnotes, excluding bibliography ‘THE OVERSIGHT OF THE UK INTELLIGENCE AND SECURITY SERVICES IN RELATION TO THEIR ALLEGED COMPLICITY IN EXTRAORDINARY RENDITION’ Alice McDonald Master of Jurisprudence (2010-2012) Durham Law School Durham University 2 Word Count: 40,214 inclusive of abstract and footnotes, excluding bibliography CONTENTS ACKNOWLEDGEMENTS……………………………………………………………….…..5 CHAPTER 1: INTRODUCTION..............................................................................................6 1.1 The Legislative Oversight Framework of the UK Intelligence and Security Services......13 1.2 The Law Relating to Torture and Extraordinary Rendition...............................................21 CHAPTER 2: THE CHALLENGES OF WORKING WITHIN A GLOBAL INTELLIGENCE LANDSCAPE.............................................................................................28 2.1 Introduction: The Global Intelligence Landscape……......................................................28 2.2 International Intelligence Cooperation...............................................................................33 2.3 Internal Challenges.............................................................................................................40 2.4 Ethical Standards................................................................................................................43 2.5 Conclusion..........................................................................................................................47 CHAPTER 3: THE ROLE OF THE EXECUTIVE.................................................................49 3.1 Introduction........................................................................................................................49 3.2 Executive Oversight: Theory and Practice.........................................................................50 3.3 Conclusion..........................................................................................................................61 CHAPTER 4: THE ROLE OF THE INTELLIGENCE AND SECURITY COMMITTEE....63 4.1 Introduction........................................................................................................................63 4.2 The ISC’s Structure and Powers: Theory and Practice......................................................64 4.3 The ISC and the Executive.................................................................................................72 4.4 The ISC and Extraordinary Rendition................................................................................75 4.5 Conclusion..........................................................................................................................88 CHAPTER 5: THE ROLE OF THE COURTS………………………………………………90 5.1 Introduction………………………………………………………………………………90 5.2 The Judicial Function within Intelligence Oversight: Theory…………………………...92 5.3 The Judicial Function within Intelligence Oversight: the UK Legislation in Practice…..94 5.4 Extraordinary Rendition in the UK Courts………………………………………………98 3 Word Count: 40,214 inclusive of abstract and footnotes, excluding bibliography 5.5 Conclusion………………………………………………………………………………109 CHAPTER 6: THE ROLE OF NON-TRADITIONAL OVERSIGHT BODIES…………..112 6.1 Introduction……………………………………………………………………………..112 6.2 Civil Society and Intelligence Oversight…………………………………………….....114 6.3 The Role of Non-Governmental Organisations………………………………………...119 6.4 The Role of Transnational Organisations……………………………………………….127 6.5 The Press………………………………………………………………………………..130 6.6 Conclusion………………………………………………………………………………136 CHAPTER 7: CONCLUSION……………………………………………………………...139 BIBILOGRAPHY…………………………………………………………………………..145 The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. 4 Word Count: 40,214 inclusive of abstract and footnotes, excluding bibliography ACKNOWLEDGEMENTS I would like to thank Durham Law School for its assistance in producing this thesis. I am especially grateful to Professor Ian Leigh for his patience, and all the invaluable advice, support and supervision he has given me during the course of my MJur. 5 Word Count: 40,214 inclusive of abstract and footnotes, excluding bibliography CHAPTER 1: INTRODUCTION There has never been a more apposite time at which to scrutinise the oversight of UK intelligence and security agencies. In an extraordinary few years, the actions and operations of the Security Service (MI5), Secret Intelligence Service (MI6 or SIS) and GHCQ have hit newspaper headlines as never before, in relation to allegations of the agencies’ complicity in the US led 'global spider's web'1 of extraordinary rendition.2 Discussions revolving around such allegations have largely focused upon the need for effective and public oversight and accountability of the intelligence and security services. This is because although the agencies operate within a difficult global environment, and against a variety of diverse threats,3 it is increasingly evident that a democratic society which upholds liberal values must, to some extent, be able to legitimately regulate the actions of its agencies. Although definitions of “extraordinary rendition” differ slightly, broadly speaking, it is agreed that the term refers to the practice of, ‘forcibly transporting a person – usually alleged to be involved in terrorist activity – 1 Committee on Legal Affairs and Human Rights, ‘Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report’, Council of Europe: Strasbourg (Doc. 11302 rev.) (11/06/2007) <http://assembly.coe.int/Documents/WorkingDocs/Doc07/edoc11302.pdf> 46. 2 See, amongst other similar articles, C Brown, ‘Rendition victim was handed over to the US by MI6’, The Independent, 14 December 2005 < http://www.independent.co.uk/news/uk/politics/rendition-victim-was- handed-over-to-the-us-by-mi6-519413.html> last accessed 05/02/10; I Cobain, ‘Britain ‘complicit in mistreatment and possible torture’ says UN’, The Guardian, 27 January 2010 <http://www.guardian.co.uk/ world/2010/jan/27/britain-complicit-possible-torture-un> last accessed 05/02/10; R Norton-Taylor, ‘MI5 faces crisis of credibility as torture denials are discredited’, The Guardian, 10 February 2010 <http://www.guardian. co.uk/world/2010/feb/10/torture-mi5-binyam-mohamed>
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