Foreign AffairsWritten evidence from C.R.G. Murray, Newcastle Law School, Newcastle University
Saudi Arabia remains one of the UK’s most important intelligence partners, sharing intelligence regarding al-Qaeda-related threats to the UK and regarding threats to UK interests and nationals within Saudi Arabia.
Despite this mutual arrangement, Saudi Arabia was willing to explicitly threaten to withdraw counter-terrorism co-operation with the UK in 2006 in a (successful) attempt to persuade the SFO to halt its investigation into the al-Yamamah arms deal.
Wider aspects of UK counter-terrorism policy, together with the SFO Director’s ability to take into account unspecified public interests in conducting investigations, indicated to the Saudi Government that this investigation would be susceptible to political pressure.
Following the collapse of the al-Yamamah investigation under Saudi threats, other partner countries employed political pressure regarding security co-operation to influence UK policy makers and courts.
Colin Murray is a senior lecturer in law at Newcastle University, having been a lecturer from 2007 to 2012. His research examines the intersection between national security and public law. His articles on international aspects of UK counter-terrorism policy include ‘In the Shadow of Lord Haw Haw: Guantánamo Bay, Diplomatic Protection and Allegiance’ 2011. Public Law 115–138 and ‘The Ripple Effect: Guantánamo Bay in the United Kingdom’s Courts’ (2011) 23 Pace International Law Review 15–40. This submission is based upon a working paper available on SSRN (http://ssrn.com/abstract=2178110).
The UK, Saudi Arabia and Al-Qaeda Terrorism
1. In the prelude to the al-Qaeda attacks of 11 September 2001 (between 1997 and 2001), UK engagement with Saudi Arabia on security matters was relatively limited. When, in December 1999, parliamentarians raised Saudi complaints regarding the activities of UK-based dissidents, the then-Home Secretary Jack Straw dismissed these concerns as the actions a regime unaccustomed to the operation of a liberal democracy.1 But, as the UK’s commitment to an ‘ethical foreign policy’2 came under strain due to the exigencies of countering al-Qaeda-related terrorism, the UK’s co-operation with Saudi Arabia intensified.
2. The 11 September attacks demonstrated the capabilities of the central al-Qaeda organisation. That 15 of the 19 9/11 hijackers were of Saudi nationality emphasised the importance of co-operation with Saudi Arabia in tackling this threat to the UK and its allies.3 Moreover, groups aligned to al-Qaeda posed a considerable threat to the large number of UK nationals working within the Saudi Arabian oil industry and related services. Between 2002 and 2005, in particular, a series of gun and bomb attacks targeted this UK expatriate community.4
3. For all the significance of Saudi Arabia to UK efforts to counter al-Qaeda, the Saudi Government’s attitude towards al-Qaeda and its affiliates was at best ambiguous in the decade before, and even in the years after, the 9/11 attacks.5 The Saudi Government (controlled by the Saudi Royal Family, with ultimate authority resting with King Abdallah bin Abdulaziz al-Saud) actively promoted (domestically and internationally) a Wahhabi conception of Islam which al-Qaeda’s leadership sought to harness in its effort to recruit adherents.6 Saudi Arabia was also slow to tackle the flow of money from wealthy Saudi nationals backing al-Qaeda-related terrorism.7 As recently as 2009, security scholar Paul Maddrell described the attitude of Saudi agencies as one of the most pressing problems for international counter-terrorism co-operation post-9/11 ‘because, as partners in the battle against terrorism, they are as crucial as they are unreliable’.8
4. The Saudi Government’s long-standing reluctance to tackle al-Qaeda support within its jurisdiction in part constituted an effort to disassociate Saudi Arabia from al-Qaeda (an effort which culminated in the arrest, detention and alleged torture of foreign-national workers, including UK citizens, who were accused of carrying out the attacks on the expatriate community as part of a protection racket).9 But it also stemmed from the Saudi Government’s concern over the popularity of al-Qaeda within Saudi Arabia in the wake of the 9/11 attacks, and a reluctance to create martyrs to the al-Qaeda cause which might exacerbate the domestic threat.10 The Saudi Government was particularly sensitive to the potential of corruption allegations levelled against it by Osama bin Laden to provoke popular unrest.11
5. Al-Qaeda could not, however, continue to operate unchecked within Saudi Arabia, especially when the terrorist threat ‘came home’.12 The campaign against foreign oil-industry workers culminated in the murder of 22 people (19 of them foreign nationals, including one UK citizen) at the al-Khobar compound in May 2004.13 By the summer of 2005, many of al-Qaeda’s veteran operatives (often blooded in the Afghan Wars) had been killed or captured by the Saudi Government, while still others had travelled to fight in Iraq.14 In its 2009 CONTEST Strategy document, the UK Government confidently declared that al-Qaeda and its affiliates in Saudi Arabia ‘have lost popular support and have ceased to be effective’.15
6. By 2009, however, new generation of militants, including some veterans returning from Iraq, would ultimately unify the Saudi and Yemini al-Qaeda affiliates under the name of al-Qaeda in the Arabian Peninsula (AQAP). AQAP was responsible for the attempted downing of an airliner over Detroit in 2009, the air-cargo bomb plot of 2010 and repeated attacks aimed at UK Embassy staff.16 Whilst this group is largely based in areas of Yemen outside the control of the Yemini Government, Saudi Arabia’s military and its external intelligence service (the General Intelligence Presidency) have played an important role in international efforts to counter AQAP activities.17
The International Counter-Terrorism Framework
7. UN member states first collective response to the 9/11 attacks was Security Council Resolution 1373.18 The Resolution requires states to take any ‘necessary steps to prevent the commission of terrorist acts, including by provision of early warnings to other States and by exchange of information’,19 and that such co-operation should involve ‘the exchange of operational information’ regarding the activities and capabilities of suspected terrorists.20
8. The UK’s occasionally unpredictable bi-lateral relations with countries like Saudi Arabia, with its security networks and access to human intelligence on al-Qaeda activities,21 drove its support for Resolution 1373. By tying all UN members into an international counter-terrorism regime, the Resolution provided a powerful new driver for co-operation. Bi-lateral UK-Saudi Arabia security co-operation now takes place via a framework constructed in light of Resolution 1373; the Memorandum of Understanding on the Fight against Terrorism, the Sale of Narcotics and Organized Crime agreed between the two states. Nonetheless, as Saudi reports to the UN Counter-Terrorism Committee make clear, Saudi Arabia envisages that co-operation takes place under the terms of this agreement, which is not a public document.22
9. In a further effort to dispel the image that Saudi Arabia was not fully committed to international efforts to counter al-Qaeda, King Abdallah has personally promoted the idea of an international counter-terrorism centre based in Saudi Arabia. Despite the scepticism of many commentators (including the Foreign Affairs Select Committee23), the UN Centre for Counter-Terrorism opened in Jeddah in 2011, winning plaudits from the UN Secretary General as ‘a key tool at our disposal to achieve better coordination and effective action’.24 The first three years of the institution’s operations are supported by $10 million of Saudi Government funding.25
The al-Yamamah Bribery Investigation and UK-Saudi Arabia Security Co-operation
10. Under the al-Yamamah arms deals, worth an estimated £40 billion over nearly 30 years, the Saudi and UK Governments agreed to equip and upgrade the Saudi Air Force using equipment (Tornado, and subsequently Typhoon, aircraft) manufactured by BAE Systems. The terms of the deal were covered by a strict confidentiality clause.26 The period 2004–2006 was vital to the third phase of the deal (covering the purchase of 72 Typhoon aircraft).27
11. Whilst this negotiation was ongoing, the Serious Fraud Office (SFO) was undertaking, pursuant to the UK’s international obligations,28 an investigation into whether earlier phases of the deal had been secured as a result of bribery of Saudi officials and Royal Family members. In late 2006, when the SFO gained permission to investigate Swiss bank accounts related to the deal, the Saudi Government threatened to cease security and foreign policy co-operation and cancel its procurement of Typhoon aircraft.29 This threat was repeated at the highest levels of inter-governmental negotiation (including at meetings between Prince Bandar bin Sultan, himself implicated in the investigations, and the Prime Minister’s Chief of Staff).30 Given the threat to UK security, reported to the SFO by the UK Ambassador to Saudi Arabia, the SFO Director terminated the investigation in December 2006.31
12. This decision was challenged by Corner House Research, an anti-corruption NGO. The courts, however, ultimately rejected this challenge. The Director’s duty to take account of the public interest in SFO activities required him to react to diplomatic advice that the Saudi threat posed a grave risk to ‘British lives on British streets’, and indeed to UK nationals within Saudi Arabia.32
Explaining Saudi Arabia’s Threat
13. US diplomatic cables published by Wikileaks in December 2010 affirmed the view of the Saudi and US Governments that their ‘security cooperation must remain independent of political buffeting’. US Ambassador James Smith reported that the Saudi Interior Ministry considered that ‘the US and Saudi Arabia are in “simultaneous mode” regarding the sharing of raw data and threat information’.33 Saudi Arabia’s counter-terrorism efforts, including the establishment of the UN Centre in Jeddah, should therefore be regarded as meaningful. Moreover, key figures in Saudi counter-terrorism operations, most notably the current Interior Minister, Prince Mohammed bin Nayef, have been targeted directly by al-Qaeda attacks.34
14. Saudi-UK co-operation (as with Saudi-US co-operation) may ordinarily be independent of “political buffeting”. Nonetheless, Saudi co-operation is based on a series of “red lines” protecting key interests (likely expressed in a “national interest” exception clause in Saudi-UK Counter-Terrorism Memorandum of Understanding). The SFO’s al-Yamamah investigation, in threatening to expose corrupt payments to senior members of the Saudi Royal Family (in spite of the confidentiality clause in the al-Yamamah agreement35), risked providing ammunition to the Saudi Government’s domestic opponents (and especially to al-Qaeda-affiliated groups). At this juncture, the Saudi Government would not have risked a potential international outcry against threats to counter-terrorism co-operation if it perceived that no gain would result. The apparent flexibility of UK counter-terrorism law, however, invited such pressure.
15. In March 2001, little over a year after the UK had so bluntly dismissed Saudi concerns over dissident activity,36 the UK took steps to ban the People’s Mojahadeen Organisation of Iran (the PMOI, also known as the Mujaheddin-e-Khalq).37 Whilst the PMOI would not renounce violence until June 2001,38 and it would require several years for the UK Government to assess the veracity of this claim, the difference in approach was likely not lost upon Saudi policy makers. Similarly, in 2007, the UK government was willing to prosecute Libyan dissidents,39 and, as has recently emerged, to directly assist Colonel Gaddafi’s security apparatus.40 Arguably, the UK Government’s counter-terrorism policy and list of proscribed organisations was being manipulated to achieve diplomatic goals (the efforts to kick-start relations with Iran and Libya). Such cases may well have created a general impression that the UK’s legal system was malleable under diplomatic pressure.
The Fallout from Saudi Arabia’s Successful Threat
16. ‘U.gly and obviously unwelcome’41 though the Saudi Government’s threat to terminate counter-terrorism co-operation may have been, from the Saudi perspective it was not unwarranted. Instead, it constituted an effort to avert the risk of public disorder and terrorism within Saudi Arabia should the SFO expose endemic corruption amongst the Saudi Royal Family. Seeing how the UK seemingly adapted its counter-terrorism policy to facilitate relations with Iran and Colonel Gaddafi’s Libya, Saudi officials were willing to test the claims by UK diplomats that the SFO operated independently of any political pressure.42 The abandonment of the investigation and the outcome of the Corner House case vindicated this prediction.43
17. T.E. Lawrence claimed that, in his dealings with the Arabs, he would often find that they would hold mutually contradictory beliefs; ‘imperturbably unconscious of the flight, they oscillated from asymptote to asymptote’.44 Whatever the veracity of that observation during the Arab Revolt of 1916–1918, the current Saudi Government could level a similar charge against UK policy makers. Often, during the last decade, the public face of the UK’s counter-terrorism policy has placed considerable emphasis upon states’ shared obligations under Resolution 1373.45 When this façade was challenged, the UK Government took the politically expedient course of satisfying Saudi Arabia’s demands. The UK’s reluctance to invoke Resolution 1373 before the UN Counter-Terrorism mechanisms in response to the 2005–06 Saudi threats to co-operation is telling,46 exposing the Blair Government’s belief that such a course of action would not restore co-operation.
18. With Saudi Arabia burnishing its counter-terrorism credentials by funding the UN Counter-Terrorism Centre, the chance of successful complaints about any future Saudi recalcitrance under the Resolution 1373 mechanisms seems to have diminished further, even as reports surface of further SFO investigations into corruption and Saudi public procurement.47 Moreover, halting the SFO’s al-Yamamah investigation on the basis of the Saudi threat to co-operation has had serious and on-going consequences for UK counter-terrorism policy.
19. Since the UK’s failure to resist the threats against the al-Yamamah investigation, several of the UK’s partners have attempted to leverage security co-operation against advancing their policy goals. In response to the High Court’s proposed release of shared intelligence documents in the Binyam Mohammed case48 the US vowed to “re-evaluate” (UK courts and policy makers have largely avoided the term “threaten”49) UK-USA security co-operation.50 Similar pressure has been applied in cases involving countries including Uganda and Kenya.51 These cases suggest that, as the High Court forewarned in its judgment in Corner House (which was subsequently reversed by the House of Lords), once independent officials like the SFO Director adjust their actions in light of threats, the rule of law will be undermined.52
19 November 2012
1 J. Straw, MP, HC Deb., vol.341, col.164 (14 Dec. 1999).
2 R. Cook, MP, ‘The Government's Ethical Foreign Policy’ The Guardian (12 May 1997).
3 See Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2006) HC 573, 67..
4 See HM Government, The United Kingdom’s Strategy for Countering International Terrorism (2009) Cm 7547, 23.
5 See Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2006) HC 573, 78..
6 See A. Gendron: ‘Confronting Terrorism in Saudi Arabia’ (2010) 23 International Journal of Intelligence and CounterIntelligence 487, 498-499.
7 See Foreign Affairs Committee, Global Security: The Middle East (2007) HC 363, 178..
8 P. Maddrell, ‘Failing Intelligence: U.S. Intelligence in the Age of Transnational Threats’ (2009) 22 International Journal of Intelligence and CounterIntelligence 195, 208.
9 Jones v Ministry of Interior for the Kingdom of Saudi Arabia 2006. UKHL 26; 2007. 1 AC 270, 2.-4..
10 Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2006) HC 573, Ev12 (P. Wilkinson)
11 See A. Atwan, The Secret History of Al-Qa’ida (London: Abacus, 2006) 145-147.
12 National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (New York: W.W. Norton, 2004) 373.
13 See Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2006) HC 573, 68..
14 See A. Atwan, The Secret History of Al-Qa’ida (London: Abacus, 2006) 173-174.
15 See HM Government, The United Kingdom’s Strategy for Countering International Terrorism (2009) Cm 7547, 47.
16 See A. Harris, ‘The Uncertainties of Change’ (2011) 156 RUSI Journal 72, 72-73.
17 See A. Cordesman, Saudi Arabia: National Security in a Troubled Region (Oxford: ABC-CLIO, 2009) 127.
18 Security Council Resolution 1373, S/RES/1373 (28 Sep. 2001).
19 ibid., para.2(b).
20 ibid., para.3(a).
21 See A. Svendsen, Understanding the Globalization of Intelligence (Basingstoke: Macmillan, 2012) 80.
22 UN Counter-Terrorism Committee, Third Report of Saudi Arabia S/2003/583 (2 Jun. 2003) 12. Available at: http://daccess-ods.un.org/TMP/534821.227192879.html.
23 Foreign Affairs Committee, Foreign Policy Aspects of the War against Terrorism (2006) HC 573, 86..
24 UN Department of Public Information, ‘United Nations Counter-Terrorism Centre is Key Tool to Better Tackle, Suppress Terrorism Threat, Secretary-General Tells Advisory Board’ (12 June 2012). Available at: http://www.un.org/News/Press/docs/2012/sgsm14328.doc.htm.
25 United States Department of State, Country Reports on Terrorism 2011 - Saudi Arabia (31 Jul. 2012). Available at: http://www.unhcr.org/refworld/docid/501fbca228.html
26 R (Corner House Research) v Serious Fraud Office 2008. UKHL 60; 2009. 1 AC 756, 13. (Lord Bingham).
27 ibid., 3..
28 OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) 37 ILM 1.
29 R (Corner House Research) v Serious Fraud Office 2008. UKHL 60; 2009. 1 AC 756, 11. (Lord Bingham).
30 ibid., 24..
31 ibid., 22..
32 ibid., 34..
33 See J. Smith, ‘Meeting with Prince Mohammed bin Naif, Assistant Minister of the Interior’ (19 Jan. 2010). Available at: http://www.guardian.co.uk/world/us-embassy-cables-documents/244077.
34 See A. Gendron: ‘Confronting Terrorism in Saudi Arabia’ (2010) 23 International Journal of Intelligence and CounterIntelligence 487, 495.
35 R (Corner House Research) v Serious Fraud Office 2008. UKHL 60; 2009. 1 AC 756, 4. (Lord Bingham).
36 See above, para.1.
37 Terrorism Act (Proscribed Organisations) (Amendment) Order 2001, S.I. 2001/1261.
38 See Secretary of State for the Home Department v Lord Alton of Liverpool 2008. EWCA Civ 443; 2008. 1 WLR 2341, 9..
39 See R v F 2007. EWCA Crim 243; 2007. 3 WLR 164.
40 See R. Spencer, ‘Libya: MI6 worked with Gaddafi government on rendition operation’ The Telegraph (5 Sep. 2011).
41 R (Corner House Research) v Serious Fraud Office 2008. UKHL 60; 2009. 1 AC 756, 41. (Lord Bingham).
42 ibid., 40..
43 See J. Spencer, ‘Fiat justicia, ruatque concordia cum Arabe?’ (2010) 69 Cambridge Law Journal 456, 457.
44 T. Lawrence, Seven Pillars of Wisdom (first published 1922, London: Random House, 2010) 36.
45 See HM Government, The United Kingdom’s Strategy for Countering International Terrorism (2009) Cm 7547, 77.
46 R (Corner House Research) v Serious Fraud Office 2008. UKHL 60, 40. (Lord Bingham).
47 G. Ruddick, ‘EADS executives warned five years ago about questionable payments’ The Telegraph (12 Aug. 2012).
48 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs 2010. EWCA Civ 65; 2011. QB 218.
49 Contrast Mohamed 2009. EWHC 152 (Admin); 2009. 1 WLR 2653, 107., with Mohamed 2010. EWCA Civ 65, 146. (Lord Neuberger MR).
50 ibid., 235. (Sir Antony May P).
51 R (Omar) v Secretary of State for Foreign and Commonwealth Affairs 2012. EWHC (Admin) 1737.
52 See R (Corner House Research) v Director of the Serious Fraud Office 2008. EWHC (Admin) 714, 170.-171. (Moses LJ).