Allegation
relates to eight Libyan nationals and comes in wake of Guardian's revelations
about GCHQ and Tempora programme
The Guardian, Owen Bowcott, legal affairs correspondent, Sunday 13 October 2013
 |
| Sami al-Saadi, with and his daughter Khadija in 2011, settled his claim against the UK government over his rendition to Gaddafi’s Libya. Photograph: Marco Longari/AFP |
GCHQ is
probably intercepting legally privileged communications between lawyers and
their clients, according to a detailed claim filed on behalf of eight Libyans
involved in politically sensitive compensation battles with the UK.
The
accusation has been lodged with Britain's most secret court, the investigatory
powers tribunal (IPT), which examines complaints about the intelligence
services and government use of covert surveillance. Most of its hearings are in
private.
The
allegation has emerged in the wake of the Guardian's revelations about
extensive monitoring by GCHQ of the internet and telephone calls, chiefly
through its Tempora programme.
The system
taps directly into fibre optic cables carrying the bulk of online exchanges
transiting the UK and enables intelligence officials to screen vast quantities
of data.
The eight
Libyans, members of two families now living in the country's capital, Tripoli,
say they were victims of rendition. They claim they were kidnapped by MI6 and
US intelligence agencies, forcibly returned to Colonel Muammar Gaddafi's regime
and tortured. At that time, in 2004, when Gaddafi relinquished his nuclear
weapons programme, intelligence relations between Tripoli, London and
Washington were close.
A landmark
legal action between Abdel Belhaj, 47, and the UK government is due to be heard
at the high court shortly to resolve the kidnap and torture allegations.
But lawyers
working with the human rights group Reprieve fear their ability to fight the
case will be undermined because their legal correspondence may be
surreptitiously monitored.
Sami
al-Saadi, another Libyan dissident, and his family have already settled their
claim against the government for a payment of £2.2m. The Foreign Office did
not, however, admit liability.
The "notice
of complaint" by solicitors at Leigh Day on behalf of Reprieve and the
Libyans has already been made to the IPT. It lists the Security Service (MI5),
the Secret Intelligence Service (MI6), the Government Communications
Headquarters (GCHQ) in Cheltenham, the home secretary and the foreign secretary
as respondents. It calls for the case to be heard in open court.
The claims
states: "There is a strong likelihood that the respondents have
intercepted and are intercepting the applicants' legally privileged
communications in respect of the [cases]." Belhaj and Saadi were prominent
military leaders of the Libyan Islamic Fighting Group (LIFG) during the Libyan
revolution, the document points out, and are therefore "likely to be of
interest" to UK intelligence agencies.
Additionally,
the complaint maintains, GCHQ's capability has enabled it to engage in
"mass scale communication gathering as part of the tempora programme"
that "monitors and collates, on a blanket basis, the full range of
electronic communications...". Information obtained is routinely stored
for three days but held for longer for those "deemed to be of
interest".
The
complaint quotes as evidence accounts published in the Guardian about the
Tempora system based on documents revealed by the US National Security Agency
(NSA) whistleblower Edward Snowden as part of his attempt to expose what he has
called "the largest programme of suspicionless surveillance in human
history".
'Legal
professional privilege', as it is formally known, allows legal advice between
clients and their lawyers to be kept private. According to the Law Society,
which represents solicitors in England and Wales, it ensures that "certain
documents and information provided to lawyers cannot be disclosed at all. It
recognises the client's fundamental human right to be candid with his legal
adviser, without fear of later disclosure to his prejudice. It is an absolute
right and cannot be overidden by any other interest."
Reprieve
and Leigh Day allege the surveillance breaches the European convention on human
rights, which guarantees respect for private and family life and the right to a
fair trial.
The only
legal exemption for intercepting emails, the submission argues, would be for
the prevention of crime – a consideration not relevant in this context. It also
questions whether the Libyans have been discriminated against by being
subjected to surveillance that would not have been imposed on UK nationals.
The
Libyans' lawyers are seeking from the government a declaration that
intercepting their privileged communications was unlawful, an injunction
preventing interception and "just satisfaction" for breach of their
human rights.
The
complaint includes articles from the Guardian detailing the workings of the
Tempora programme and the text of a fax sent by Sir Mark Allen, who was head of
counter-terrorism at MI6 in 2004, to Mousa Koussa, then head of the Libyan
external security organisation. It was recovered from Koussa's office following
the revolution that toppled Gaddaffi.
The message
read: "I congratulate you on the safe arrival of [Belhaj].
This was
the least we could do for you and for Libya to demonstrate the remarkable
relationship we have built up over recent years."
Belhaj was
founder and leader of the LIFG which aimed to overthrow Gaddafi. He fled Libya
in 1998 following an unsuccessful uprising and moved to China where he met his
Moroccan wife, Fatima Boudchar. He was deported from China to Malaysia in 2004.
From there he was forcibly transferred to Libya.
Saadi and
his Algerian wife, Karima Ait Baaziz, and family had also moved to China where
they were eventually detained in Hong Kong.
The CIA and
British authorities are alleged to have conspired to return them to Tripoli on
a charter flight.
Saadi said
he was repeatedly tortured in a Libyan prison, being assaulted with fists,
sticks, whips and rubber hosing. He claims he was interrogated by British and
Libyan officials. Belhaj, who is now a politician in Libya, also maintains that
he was tortured after being returned to Tripoli.
Cori
Cryder, who heads Reprieve's legal team on abuses in counter-terroism, said:
"It is bad enough that UK security services helped kidnap and render young
children and a pregnant woman into the hands of Colonel Gaddafi.
"To
add insult to injury, they are now trying to undermine their right to a fair
trial by spying on private communications with their lawyers. UK complicity in
Gaddafi's torture of his opponents is a shameful incident that needs to be
opened up to public scrutiny – not subject to more skulduggery from GCHQ."
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