Oversight of national security operations is often presented as vital for ensuring military and intelligence bodies of democratic states abide by the rule of law. Collectively, such portrayals place stock in what, in a recent article titled ‘Freedom of information legislation and the democratic oversight narrative’ in Critical Military Studies, I labelled the ‘democratic oversight narrative’. In short, this narrative captures a long running faith that, via oversight provided by an evolving roster of actors, systemic wrongdoing can be prevented within the national security bureaucracies of democratic states and individuals who break the law can be held accountable.
Those able to engage in such oversight, it is argued, can operate within a state (in posts such as inspector generals) and be facilitated by provisions and procedures intended to uphold the rule of law (such as those designed to facilitate whistleblowing). They can also operate as part of shifting coalitions involving, amongst others, legal professionals, individual activists and civil society groups, who are able to lobby governments or use legal proceedings to gain judgements against wrongful actions.
In the US and the UK, freedom of information is presented as a tool giving the democratic oversight narrative real-world form. This occurs, it is argued, because such legislation allows those (such as legislators and the media) responsible for national security oversight access to information about said operations. Yet, rather than providing blanket access, freedom of information processes contain provisions that allow states to withhold information if, for instance, it relates to the operational files of certain bodies such as the CIA or if disclosure is not deemed in the public interest. As such, those responsible for oversight are able to use procedures such as freedom of information to mediate between citizens and states and, in theory, help ensure that the rule of law is upheld.
In recent years, documents containing implicatory information have been released by the US and the UK, but often only after prolonged legal cases and significant obstruction by both states. In the US these documents include thousands pertaining to War on Terror detainee operations and abuse. Many such documents can be found in the Torture Database compiled by the American Civil Liberties Union. In the UK, meanwhile, the All Party Parliamentary Group on Rendition, after a three year legal challenge, successfully secured the release of documents in 2011 that, as the groups Chair Andrew Tyrie MP stated, documented ‘a catalogue of MOD [Ministry of Defence] mishaps and failures, including a failure to track detainees handed over to the US, a weakening of protections for those handed over and a failure to keep proper records.’
Drawing on documents pertaining to processes set in motion by the American Civil Liberties Union and the UK All-Party Parliamentary Group on Extraordinary Rendition focused on obtaining information about War on Terror era detainee abuse, my article argues those engaged in oversight of US and UK national security operations are faced with unduly restrictive barriers and impediments when seeking the disclosure of potentially implicatory information that should, via oversight tools such as freedom of information processes, legitimately be released. These barriers and impediments arise, it is shown, because both states can counter oversight by drawing on an opposing set of tools to stop (or at least stall) the release of such information.
— Editor’s note: For a cultural theory reading of Freedom of information practices and policies, see Anjali Nath (2014) ‘Beyond the Public Eye: On FOIA Documents and the Visual Politics of Redaction‘ in Cultural Studies <-> Critical Methodologies, 14:1.