The UK's Information Tribunal has rejected an appeal by campaigners trying to find out how many British Reaper drones are being used for warlike missions in the Middle East.
The Tribunal ruled that Blighty's Information Commissioner’s Office (ICO) was right to reject anti-drone campaign group Drone Wars UK’s Freedom of Information request seeking to find out how many RAF MQ-9 Reaper drones are being used to bomb Islamic State in Iraq and Syria on March 1, 2016.
As Chris Cole of Drone Wars pointed out in his appeal, the Ministry of Defence routinely publishes the number of conventional, manned aircraft being used for warlike operations abroad, and released detailed numbers of Reapers being used in Afghanistan and their main base location at Kandahar Airfield.
Cole’s appeal was heard under parallel legal rules that apply for national security hearings, where most of the normal procedures about openness and transparency of evidence simply do not apply. This even extends to having two parallel judgements: a non-binding “open” one that is made available to the public, and the actual “closed” judgement, which is kept secret from everyone except the government and the judge who writes it.
In theory the open judgement is a bowdlerised version of the closed judgement. In practice the closed judgement can say anything.
Rejecting the FoI request, the ICO said that revealing the number of drones being used would prejudice “the capability, effectiveness or security” of the drone units, as well as being likely to prejudice “the promotion or protection by the United Kingdom of its interests abroad” – two of the reasons the State can use to refuse disclosure of information, as permitted under sections 26 and 27 of the Freedom of Information Act 2000.
The MoD successfully argued to the ICO that disclosing the number of drones being used “would be likely to assist opposing forces in building up a detailed picture of UK tactics and strike capabilities”, allowing enemies to figure out how to counter them. Supporting the MoD, the Information Commissioner herself, Elizabeth Denham, vigorously agreed with the government department’s view that revealing how many drones were flying over Iraq and Libya would create “a real and significant risk” of prejudicing the RAF’s operations.
Denham told the tribunal she could not disclose the evidence that led her to come to this conclusion, saying only that there were “differences” between the Afghanistan deployment and the more recent Syria and Iraq drone deployments. She also argued that there was little public interest in the number of Reapers being used to bomb Islamic State being disclosed, claiming that this would not help in “informing a debate about the use of Unmanned Aerial Vehicles (UAVs)”.
Group Captain Mark Flewin of the MoD’s Permanent Joint Headquarters at Northwood, Middlesex, giving evidence for the MoD, claimed the RAF’s Reapers are “intelligence, surveillance and reconnaissance assets” before conceding that their available munitions include laser-guided bombs and Hellfire anti-tank missiles.
An RAF Reaper famously used its weapons to kill British Islamist terrorist Reyaad Khan in Syria during August 2015, while his fellow Brit, Junaid Hussein, was eventually killed by American drones after a bungled first attempt killed three civilians.
Flewin was questioned by the tribunal about an MoD press release that described how “two Tornados joined the existing eight earlier this week and six Typhoon aircraft were introduced” to anti-Islamic State bombing operations from RAF Akrotiri at Cyprus. Asked whether this was not the same type of information that Cole was asking for, the group captain described the precise figures in the press release as “generic numbers”.
The tribunal ruled in favour of the MoD and dismissed Cole’s appeal. It also refused to disclose whether the USA “had been given an effective veto over disclosure”, something Flewin was asked about in a closed session that Cole was excluded from.
“Drawing on an analogy from World War 2, it can be readily understood why, for reasons of boosting morale at home and seeking to undermine that of the enemy, the government would have been keen to release the news that, on a particular night, a specified number of Lancaster bombers flew a mission over Berlin,” ruled tribunal judge Peter Lane. “It would, however, be entirely understandable why the government would be reluctant to reveal how many Lancaster bombers it actually had at its disposal on that particular night. By the same context, question (a) is directed at the number of RAF Reaper UAVs that were available to the RAF on 1 March 2016.”
Part of the three-judge tribunal’s unanimous decision that the public interest was not strong enough to order disclosure rested on reasons given in its closed judgement. Judge Lane, accompanied by Paul Taylor and Anne Chafer on the bench, did not even give a summary in the open judgement of the tribunal’s reasoning for this decision.
Speaking to The Register today by email, Cole speculated that the MoD may be struggling to recruit enough personnel to fly and maintain its drone fleet and so opposes disclosure because this would reveal whether that is the case.
He added: “The other, and probably overlapping explanation, is that the government simply wants to be able to deploy armed drones on covert operations overseas and does not want to seek Parliamentary approval, as [has] become the convention. Publicising the number and location of UK drones in operation today would set a precedent and make it harder for the government to refuse such details in the future.” ®