ABSTRACT
As is clear from the other contributions to this book, since 9/111 there is evidence of increased multilateral and bilateral cooperation by Western agencies in the ‘War on Terror’ with states that are not traditional allies, for example with Asian and Middle Eastern agencies. Writing in 2003, Stéphane Lefebvre noted the increase in liaison activities by the CIA since 9/11 and the growth in FBI overseas offices in countries facing a terrorist problem.2 The scale of these liaison arrangements (though not the specific countries involved) is a matter of official record in some cases: in 2007 the Australian Security Intelligence Organisation had 306 liaison partners in 120 countries,3 in 2002 the Canadian Security Intelligence Service had 230 arrangements with 130 countries. Comparable figures have been reported for the UK agencies. The legal footprints of these arrangements are various. They may include statutory protections and exemptions in official secrets and freedom of information laws, the sharing of intelligence or intercepted communications material for use in legal proceedings in other states (including deportation and immigration decisions), and arrangements to allow the speedy transfer of terrorist suspects (for example under the European Arrest Warrant). There is also, of course, the question of challenges arising from extraordinary rendition, i.e. the seizure and removal of non-citizens to another state otherwise than through lawful deportation or extradition, together with their enforced disappearance. While not denying the need for and benefits of increased networking between the agencies of different countries, the focus of this chapter is on the role of national courts (especially those in common law jurisdictions) in controlling some of the dangers associated with this increased level of intelligence cooperation. Those dangers include the possibilities of using cooperation to circumvent domestic legal restrictions on the powers and accountability of intelligence agencies, sidestepping human rights guarantees, and deliberately frustrating transparency and political responsibility. We will first examine the climate for judicial review of intelligence
accountability, before turning to the legal contexts in which cooperation can arise, and then assessing how the courts in various countries have responded.
