Judicial rendition – the UK-US extradition treaty is a farce

Sometimes I sit here reading the news -  on subjects in which I take a deep interest such as the recent police investigation into UK spy complicity in torture, where the police decided not to prosecute – and feel that I should comment.  But really, what would be the point?  Of course the police would not find enough concrete evidence, of course no individual spies would be held to account, despite the fact that the British government has already paid massive settlements to the victims.

BelhadjNow there are reports that the police will be investigating MI6 involvement in the extraordinary rendition and torture of two Libyans.  The case appears bang to rights, with documentary evidence that high-ranking MI6 officers and government ministers were involved in and approved the operation.  Yet I'm willing to bet that the plods at Scotland Yard will still not be able to find the requisite evidence to prosecute anybody. 

The inevitable (and probably wished-for outcome on the part of the authorities) is that people become so weary and cynical about the lack of justice that they stop fighting for it.  And they can temporarily succeed, when we succumb to cynical burnout.

But the case reported in today's Daily Mail, that of a young British student facing extradition to the US despite having broken no laws in the UK, succeeded in rousing my wrath. 

Richard_ODwyerThe hapless 23-year old Richard O'Dwyer faces 10 years in a maximum security American prison.  His crime, according to the US, is that he set up a UK-based website that provided links to other international websites that allegedly hosted copyright material.

This case is so troubling on so many levels it is difficult to know where to begin.  There are issues around the crackdown of US corporate copyright law, issues around the inequality of the unilateral Extradition Act 2003, and historic questions of US hypocrisy about extradition.

So let's start with the unsupported allegations against poor Richard O'Dwyer.  He is a student who built a website that collated a list of sites in other countries that host films, books and music for free download.  O'Dwyer did not himself download any copyrighted material, and the websites he linked to were apparently within jurisdictions where such downloads are not illegal.  Providing a signpost to other legal international sites is manifestly not a crime in the UK and he has never been charged.

However, over the last couple of decades the US entertainment lobby has been fighting a vicious rearguard action against copyright infringement, starting with the music, then the film, and now the publishing industry.  The lobbyists have proved victorious and the invidious SOPA and PIPA laws are soon to be passed by the US Congress.  All well and good you might think – it's one of those mad US issues.  But oh no, these laws have global reach.  What might be legal within the UK might still mean that you fall foul of US legislation.

Gary_McKinnon2Which is where the Extradition Act 2003 becomes particularly threatening.  This law means that any UK citizen can be demanded by and handed over to the US with no prima facie evidence.  As we have seen in the appalling case of alleged hacker Gary McKinnon, it matters not if the "crime" were committed on UK soil (as you can see here, McKinnon's case was not prosecuted by the UK authorities in 2002.  If it had been, he would have received a maximum sentence of 6 months' community service: if extradited he is facing up to 70 years in a US maximum security prison).

The UK government has tried to spin the egregious Libyan cases as "judicial rendition" rather than "extraordinary kidnapping" or whatever it's supposed to be.  So I think it would be accurate to call Gary McKinnon's case "judicial rendition" too, rather than boring old extradition.

Richard O'Dwyer apparently didn't commit anything that could be deemed to be a crime in the UK, and yet he is still facing extradition to the US and a 10 year stretch.  The new US laws like SOPA threaten all of us, and not just with judicial rendition. 

As I have mentioned before, digital rights activist Cory Doctorow summed it up best: "you can't make a system that prevents spying by secret police and allows spying by media giants".  These corporate internet laws are a Trojan horse that will threaten our basic civil liberties across the board.

So now to my third point.  The hypocrisy around the American stance on extradition with the UK is breathtaking.   The UK has been dispatching its own citizens off at an alarming rate to the "tender" mercies of the US judicial system since 2004, with no prima facie evidence required.  In fact, the legal proof required to get a UK citizen extradited to the US is less than that required for someone to be extradited from one US state to another. 

The US, on the other hand, delayed ratifying the law until 2006, and the burden of proof required to extradite someone to the UK remains high, so it is unbalanced not only in concept but also in practice.  And this despite the fact that the law was seen as crucial to facilitate the transfer of highly dangerous terrorist suspects in the endless "war on terror".

Why has this happened?  One can but speculate about the power of the Irish lobby in the US government, as Sir Menzies Campbell did during a parliamentary debate about the Act in 2006.   However, it is well known that the US was remarkably coy about extraditing IRA suspects back to the UK to stand trial during the 30-year "Troubles" in Northern Ireland.  We even have well-known apologists such as Congressman Peter King, the Chairman of the Homeland Security Committee attempting to demonise organisations like Wikileaks as terrorist organisations, while at the same being a life-long supporter of Sinn Fein, the political wing of the Provisional IRA.

UK_poodleThe double standards are breath-taking.  The US dictates an extradition treaty with the UK to stop terrorism, but then uses this law to target those who might potentially, tangentially, minutely threaten the profits of the US entertainment mega-corps; and then it delays ratifying and implementing its own law for potentially dubious political reasons.

And the UK government yet again rolls over and takes it, while innocent students such as Richard O'Dwyer must pay the price.  As his mother is quoted as saying: "if they can come for Richard, they can come for anyone".

The Bureau of Investigative Journalism article

Here is a recent article I wrote for The Bureau of Investigative Journalism, about our slide into a surveillance state.  

TBIJ supported Wikileaks during the release of the SpyFiles. The issue is of such crucial importance for our democracy, I was disappointed that more of the mainstream media did not follow up on the stories provided.

Here’s the text:

Analysis: the slide into a surveillance state

Fifty years ago, President Eisenhower warned of the ‘disastrous rise’ of the military-industrial complex. His fears proved all too accurate.

Now in the post-9/11 world, the threat goes even further: the military-industrial complex is evolving into the military-intelligence complex. It is a world, I fear, that is propelling us into a dystopian surveillance nightmare.

I have seen this nightmare unfold from close quarters. In the mid-90s I was an intelligence officer for MI5, the UK domestic security service. That is, until I resigned to help my former partner and colleague David Shayler blow the whistle on a catalogue of incompetence, cover-ups and crimes committed by spies. We naively hoped that this would lead to an inquiry, and a review of intelligence work and accountability within the notoriously secretive British system.

The blunders and illegal operations that we witnessed in our six years at MI5 took place at what is probably the most ethical and accountable decade in the British spying service’s 100-year history.

Even then, they were getting away with pretty much whatever they wanted.

Since the attacks of 9/11, I have watched with increasing dismay as more powers, money and resources have been pumped into the international intelligence community to combat the nebulous ‘war on terror’. As a result, civil liberties have been eroded in our own countries, and countless innocent people have been killed, maimed and displaced across the Middle East.

The Regulation of Investigatory Powers Act (RIPA), which was designed to allow our spy agencies to lawfully intercept our communications to counter terrorism and organised crime, has been routinely used and abused by almost 800 public bodies. MI5 admitted to making 1,061 mistakes or ‘administrative errors’ this year alone in its application of RIPA, according to the Interception of Communications Commissioner, Sir Paul Kennedy.

Intelligence creep extends to the police, as we saw with the undercover police scandal earlier this year, where the unaccountable National Public Order Intelligence Unit was discovered to be infiltrating harmless and legitimate protest groups for years on end.

It is a world, I fear, that is propelling us into a dystopian surveillance nightmare.

Even beyond the undercover cops, we have seen an explosion in corporate spying. This involves mercenary spy companies such as Xe (formerly Blackwater), Kroll, Aegis and Diligence offering not just security muscle in hotspots around the world, but also bespoke operations enabling big corporations to check out staff or to infiltrate and investigate protest groups that may embarrass the companies.

The mercenary spy operates without any oversight whatsoever, and can even be granted immunity from prosecution, as Xe enjoyed when operating in Iraq.

The last decade has also been a boom time for companies providing high-tech surveillance capabilities. One aspect of this in the UK – the endemic CCTV coverage – is notorious. Local councils have invested in mobile CCTV smart spy cars, while cameras that bark orders to you on the street have been trialled in Middlesbrough.

Drones are increasingly used for aerial surveillance – and the potential for militarisation of these tools is clear.

All this despite the fact that the head of the Metropolitan Police department that is responsible for processing all this surveillance information stated publicly that CCTV evidence is useless in helping to solve all but 3% of street robberies in London. In fact, since CCTV has been rolled out nationally, violent crime on the streets of Britain has increased.

But, hey, who cares about facts when security is Big Business? Someone, somewhere, is getting very rich by rolling out ever more Orwellian surveillance technology. And while the technology might not be used against the wider UK citizenry in a particularly malignant manner – yet – the same companies are certainly allowing their technologies to find their way to the more violent and repressive Middle Eastern states.

That would never happen in Britain – would it? We retain an optimistic faith in the long-term benign intentions of our government, while tut-tutting over Syrian police snatch squads pre-emptively arresting suspected dissidents. Yet this has already happened in the UK: before the royal wedding in April, protesters were pre-emptively arrested to ensure that they would not cause embarrassment. The intent is the same in Syria and Britain. Only the scale and brutality differs – at the moment.

When I worked for MI5 in the 1990s I was appalled how easily telephone interception could be used illegally, and how easily the spies could hide their incompetence and crimes from the government. In the last decade it has become much worse, with senior spies and police officers repeatedly being caught out lying to the toothless Intelligence and Security Committee in Parliament. And this is only the official intelligence sector.

How much worse is the endemic surveillance carried out by the corporate spy industry?

The balance of power, bolstered by new technologies, is shifting overwhelmingly in favour of the Big Brother state – well, almost. The WikiLeaks model is helping level the playing field, and whatever happens to this trailblazing organisation, the principles and technology are out there and will be replicated. This genie cannot be put back in the bottle. This – combined with the work of informed MPs, investigative journalists and potentially the occasional whistleblower – gives me hope that we can halt this slide into a Stasi state.

Annie Machon is a former spy with MI5, the British intelligence agency working to protect the UK’s national security against threats such as terrorism and espionage.
You can read Annie Machon’s blog ‘Using Our Intelligence’ here.

Fascism 2012 – the ongoing merger of the corporate and the state

I’m gradually coming to after a knock-out blow last October – the unexpected death of my beloved and only brother, Rich.  Words cannot describe.

But looking forward to the delights that 2012 will no doubt offer: Julian Assange remains trapped in a legal spider’s web, but all credit to Wikileaks – it keeps on providing the goods.  

The recent publication of the SpyFiles should have been a massive wake-up call, as it it highlighted the increasing use and abuse of mercenary spy tech – all without any effective oversight, as I recently wrote in my article for the Bureau of Investigative Journalism

Needless to say, the issue of massive commercial surveillance capabilities usually remains confined to a niche media market, although the Daily Mail did rouse itself to report that shoppers were being tracked via mobile phones as they consumed their way around malls.  Well, I suppose it’s a start.

With the growth of mercenary spy companies in our minds, we should be even more concerned about the accelerated shredding of our civil liberties, particularly in the US and UK.  Despite earlier promises that he would veto any such legislation, President Obama signed into law the invidious NDAA on 31st December.  This means that the US military is now empowered to seize and indefinitely detain, with no recourse to traditional due process, not only potentially all non-Americans across the planet a la the Guantanamo/extraordinary rendition model, but can now also do this to US citizens within their own country.

Guantanamo_BayDespite the passionate internet debate, the issue has unsurprisingly been largely ignored by most of the mainstream corporate media.  But the predominantly US-based internet commentary displays a breathtaking hypocrisy: yes, the NDAA is a terrible law with awful implications for American citizens.  However, people around the world have been living with just this fear for a decade, with whole communities afraid of being snatched and disappeared into black CIA torture facilities.   Where was the US outrage then?  The Pastor Martin Niemoeller poem remains as relevant today as when it was written 70 years ago.

That said a couple of brave voices have spoken out: Naomi Wolf recently described how the US legislators could ironically find themselves on the receiving end of this law, if we go by all historic precedents.  Paul Craig Roberts was on frothing good form too, inveighing against the war crimes of the US military, the persecution of Wikileaks for exposing those very crimes, and the evolving totalitarianism of our countries.

SOPAIn a digital mirror of the NDAA, the entertainment industry and their pet lobbyists are successfully ramming through the invidious SOPA law.   As acclaimed digital rights activist and author, Cory Doctorow, described in his keynote at the recent CCC geekfest in Berlin, these ostensibly commercial laws are in effect a stalking horse for governments to seize control of the internet.  As he wrote in the Guardian “you can’t make a system that prevents spying by secret police and allows spying by media giants”.  

With this in the back of our minds, the Wikileaks SpyFiles revelations about the increasing globalisation and commercialisation of corporate spy technology are even more alarming.  The government spy agencies work with little effective oversight, but the mercenaries have a completely free legal rein.  Intriguingly, it appears that unlike our own governments Afghanistan is alive to this problem and is reportedly booting out foreign contractors. 

Yet the balance of power in certain western countries is sliding overwhelmingly towards police states –  or, indeed, fascism, if you take into consideration Benito Mussolini’s definition: “the merger of state and corporate power”.

Our line of defence is slender – organisations like Wikileaks, one or two politicians of conscience, a few remaining real investigative journalists and perhaps the odd whistleblower.  Beyond that, we must individually get to grips with the threat, get informed, teched up, and protect ourselves, as we can no longer rely on our governments to uphold our basic rights – you know, privacy, freedom of expression, habeas corpus, and all those other delightfully old-fashioned ideas.

If we do not act soon, we may no longer be able to act at all in the near future….  So I wish everyone an informed, productive and active 2012!