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 Féin, 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 à 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!