Parliament’s Intelligence and Security Committee (ISC) has published its report into the intelligence basis of the UK’s 2015 drone targeted killing of Reyaad Khan in Syria in August 2015. The report has been heavily censored by the government before release and, due to the calling of a general election, the Committee says it cannot push back against the amount of redactions that have been imposed on it .
Even before the redactions, however, the Committee were refused access to what they describe as “central”, “key” and “clearly relevant” documents on the strike against Reyaad Khan. In addition they were refused all access to information on the US drones strikes conducted in conjunction with the UK on Junaid Hussain and Mohammed Emwazi.
Summarising the report, ISC Chair Dominic Grieve states:
“In terms of the severity of the threat posed by Reyaad Khan, it appears from the 25 intelligence reports and two formal intelligence assessments that we have seen that Khan was a prolific recruiter and attackplanner. Over the course of nine months he, alongside another plotter (Junaid Hussain), encouraged multiple operatives around the world to conduct attacks against the UK and our allies. They provided practical instructions for the manufacture of bombs, and information on targets. We are in no doubt that Reyaad Khan posed a very serious threat to the UK.
There is nevertheless a question as to how the threat is quantified and in this instance whether the actions of Khan and his associates amounted to an ‘armed attack’ against the UK or Iraq – which is clearly a subjective assessment. However we have been unable to consider how Ministers made that assessment since we were denied sight of the key Ministerial submission. This failure to provide what we consider to be relevant documents is profoundly disappointing. Oversight depends on primary evidence: the Government should open up the ministerial decision making process to scrutiny on matters of such seriousness.
Proper public and parliamentary scrutiny?
The ISC announced its intention to investigate the intelligence basis for the strikes in October 2015 alongside the separate inquiry by the Joint Human Rights Committee. Under its remit, the ISC is able to see classified material and discuss issues with intelligence officials. However it soon became apparent there was clear disagreement in Whitehall about what information and documents the ISC would have access to. The PM (David Cameron at the time), says the report, felt that the strike against Khan ‘fell outside the standard remit of the Committee’ as it was part of an on-going military and intelligence operation. There was a strong push back on this at the Liaison Committee (where the Chairs of the main select committees have an opportunity to directly question the Prime Minister) in January 2016 and, according to the ISC report, a compromise was reached. The PM accepted an inquiry but:
“The conditions of so doing were that the investigation should focus on the threat posed by Reyaad Khan, and that the evidence made available to the Committee would be limited to an oral brief and contemporaneous written assessments….. However, the Prime Minister considered that the exceptional circumstances which allowed him to permit the Inquiry into the Khan strike did not extend to the other two strikes.”
In other words the strikes in conjunction with the US were off the table, and the information on the strike against Khan would be limited. The Committee no doubt accepted this as ‘something better than nothing’.
According to the Committee, they were refused access to material relating to targeting procedures, consideration of potential collateral damage, as well as key intelligence submissions. The Committee states:
“The failure to provide what we consider to be relevant documents on an issue of such seriousness is therefore profoundly disappointing: it has had a significant bearing on the conclusions we have reached…”
Severe and Imminent? Necessary and proportionate?
The Committee considered the intelligence basis of targeted killing of Reyaad Khan against the key elements of the grounds given by the Government for the attack; the right of self-defence under Article 51.
In terms of whether the threat from Khan was as severe as to be described as a potential armed attack, the Committee reported that intelligence agencies were most concerned about his role in inciting, encouraging and enabling potential attacks, including providing others with the capability (instructions for manufacture of IEDs) and potential targets. The Committee agreed that Khan was “a very serious threat to the UK”. However they also state “while we believe that the threat posed by Khan was very serious, we are unable to assess the process by which Ministers determined that it equated to an ‘armed attack’ by a State.”
In terms of imminence, the Committee say that although a number of plots encouraged by Khan were thwarted, the intelligence agencies felt there were “gaps” in surveillance and according to the intelligence agencies “it felt to us at the time as though, at any day, there could be something that was happening beyond our reach”.
In regard to necessity, the Committee said it had seen evidence that other disruption options were considered, although they did know to what extent they were highlighted as a factor during the Ministerial decision-making process.
In terms of whether the strike against Khan was proportionate, Chair of the Committee Dominic Grieve said:
“The Government considered that as the strike was part of a military operation, this was outside the ISC’s statutory remit. We have therefore been prevented from looking at this issue in as much detail as we consider it requires.”
Unanswered Questions: How was the decision taken?
One of the keys questions in scrutinising the legitimacy of the strike against Khan was how the drone strike came to be authorised. This question remains unanswered. The section of the ISC report which refers to the decision-making process appears to be the most heavily censored of all and both David Cameron and Theresa May insisted it was outside the scope of the Committee’s inquiry. However as the Committee’s report states
“How intelligence is presented to Ministers and the administration of operations across Government (including the transition from intelligence activity to military activity)” is of “significant public interest”.
Unanswered Questions: An imminent threat?
The Committee’s report indicates that intelligence agencies felt that an attack could take place at any time as they could not be sure that they had sufficient ‘visibility’ of Khan’s actions. However as the Sunday Times reported, some intelligence officials opposed the drone strike on the grounds that Khan did not pose an imminent threat. The paper reported in February 2017:
An intelligence official opposed to the strike said that while Khan had gone on to become a poster boy for Isis and a prolific Twitter user who acted as a propagandist, there was no evidence that he posed an imminent threat.
“The imminence related to inspiring attacks around the world but there was not a specific attack to pin them down,” the source said.
“Many intelligence officials were opposed to the extrajudicial killing, not because we’re opposed to defeating Isis but because we weren’t convinced that drone strike reached the legal threshold.”
Another intelligence official familiar with the “discussion and debates” in the lead-up to the attack said several officials from MI5 and GCHQ had questioned the imminence of the threat posed by Khan.
The legal basis for the drone strike of self-defence is spelt out in article 51 of the UN charter. The “Caroline principles” state the threat must be “instant, overwhelming, leaving no choice of means and no moment of deliberation”.
As we saw in the speech by UK Attorney General Jeremy Wright last January, the UK is following the lead of the US in attempting to re-define the meaning of ‘imminent’ in order to enable the expansion of the ability to undertake pre-emptive armed attacks.
The Committee was told, says the report, that the question of imminence was decided by Ministers with support from the Attorney General, after they have considered the Agencies’ assessment of the threat. However the Committee were refused access to those Ministerial submissions.
Unanswered Questions: Effective?
The Committee’s report indicates that there was some discussion on whether a strike on Khan would actually be effective at disrupting the threat to the UK given there were others who would likely step into his shoes and that there could then would be less ‘visibility’ of those individuals and less opportunity to disrupt potential plots.
The committee reports they received evidence from intelligence agencies that there was a real decline in operations after the strikes on Khan and Hussain. However the next section, possibly indicating a differing view, has been redacted. The Committee conclude their reflection on this matter with the suggestion that:
“The Prime Minister should return to Parliament to update the House on the impact which the use of lethal force in this instance has had on the threat to the UK, and whether the objectives were successfully achieved.
While the ISC appears to have done their best to scrutinise the intelligence basis of the UK’s first drone targeted killing outside the battlefield, they faced determined resistance from the National Security Secretariat and the Government. While it may be understandable that some information is deemed too sensitive to be publicly released, the whole point of the ISC is that it is allowed to see such information in order for there to be proper and appropriate parliament scrutiny of government activities. As the Committee itself says in its report:
“Without sight of the actual documents provided to Ministers we cannot ourselves be sure – nor offer an assurance to Parliament or the public – that we have indeed been given the full facts surrounding the authorisation process for the lethal strike against Reyaad Khan.”