Later this month Drone Wars appeal against the MoD’s refusal to answer two FoI requests about the use of UK drones in Afghanistan reaches the Upper Tribunal, the highest level of the FoI process in the UK. The first hearing, which will take place on July 21, is to hear oral arguments on whether the appeal should be allowed to proceed.
The appeal concerns two requests for information submitted in January and May 2012 in which we ask (in summary)
- which provinces in Afghanistan have UK drone strikes taken place
- the breakdown between UK drone strikes launched under daily tasking orders (i.e. pre-planned) and those launched under dynamic targeting procedures (i.e. ‘on the fly’).
The MoD have maintained throughout the process that the information sought would ‘prejudice the capability, effectiveness or security’ of UK forces or their allies (exemption 26 of the FoI Act) and in regard to the first request, that it ‘would prejudice relations between the UK and another state’ (exemption 27 of the FoI Act).
Last September we attempted to overturn the decision at a two-day Information Tribunal hearing. We argued that the MoD themselves had selectively put information about UK use of drones into the public domain which contained far more operational detail than could be gleaned by the mere location by province of UK strikes. In addition we pointed out that weapons launched by British drones were only a small percentage of munitions that were being dropped onto Afghanistan so it was not clear how the enemy would be aided by information about only a limited subset of airstrikes.
Nevertheless the MoD maintained that the information we sought would be of use of the enemy. The MoD’s explanation of how the information is actually capable of prejudicing UK forces was given in a closed hearing by an RAF Squadron Leader, and we and our lawyers were excluded. We continue to remain in the dark about the information given.
In their published decision, the Tribunal stated that they gave “substantial weight” to the evidence given by the Squadron Leader and that as
“there was no evidence or cogent reason advanced [by the applicants] to depart from his view … we are satisfied that the disclosure of the information would cause prejudice to the effectiveness, capability, and security of relevant forces in Afghanistan.”
We will argue that as we were not present and not allowed to know what specifically the Squadron Leader said, it is not possible for us to challenge his evidence. For the Tribunal to refuse our appeal on these grounds is manifestly unjust.
The two exemptions cited by the MoD in their refusal to provide information (S.26 and S.27) are both subject to the Public Interest test. While in their published decision the Tribunal agreed that there were legal and ethical implications in the use of armed drones and there was “significant public interest in transparency about the UK’s use of armed UAVS” it took it upon itself to make the rather startling decision that the information we sought was not capable of informing the public debate on the use of drones. In this the Tribunal was at odds with the Information Commissioner who had said at an earlier stage stated that the information we sought:
“would provide a clear insight into how UAVs had been used by British forces since 2008, i.e. it would reveal something about the circumstances under which the weapons had been deployed or it would reveal the provinces in which they were used and the specific dates of any weapon launch.”
We argued clearly at the Tribunal hearing that the information sought was not a ‘magic bullet’ which would by itself confirm or allay all concerns about the growing use of armed drones. Rather the information would give greater understanding of how drones are being used on a day-to-day basis, whether they are being primarily used to protect British troops – who are overwhelmingly within Helmand province – as the MoD claims, and whether the drones ability to loiter for long periods of time over a particular area looking for suspicious behaviour or at targets of opportunity is in fact leading to more strikes.
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