The Belhadj Judgment limiting “neither confirm nor deny”

At the open hearing on March 13, the UK took the position that even if it had illegally intercepted the attorney-client communications of Belhaj, al-Saadi and their families, it was entitled to keep that fact secret from the families, their attorneys and the public.

On April 29, 2015, the IPT issued a Judgment holding that a “level of ambiguity [that] would place the validity of all the decisions of this Tribunal in doubt” would arise if, as the government requested, the IPT’s ordinary answer to whether a complainant’s rights had been violated was a “no determination [that] could mean that there has been no interception, or could mean that there has been lawful interception … or could mean that there has been unlawful interception.” Judgment, Belhadj & Others vs. the Security Service, SIS, GCHQ, Home Office and FCO, [2015] UKIPTrib 13_132-H, para. 19. Rejecting the government’s position, the IPT stated that, “It would … undermine public confidence that Parliament had created a means of holding the relevant public agencies to account, if the Tribunal’s findings of unlawful conduct by the Intelligence Agencies could be concealed on the basis of a non-specific submission of a risk to public safety.” Id.

The IPT distinguished between determinations of whether rights had been violated and the grounds for such determinations, allowing that “NCND may have a role to play in the giving, or the abbreviating, of the reasons or information to be supplied after the making of a determination in a complainant’s favor.” Id., para. 21.

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