Spies need more oversight, not new powers

Pub­lished on www​.polit​ics​.co​.uk, and Huff­ing­ton Post UK.

Fol­low­ing the awful murder of Drum­mer Lee Rigby in Wool­wich last week, the polit­ical securo­crats who claim to rep­res­ent the interests of the Brit­ish intel­li­gence ser­vices have swung into action, demand­ing yet fur­ther sur­veil­lance powers for MI5 and MI6 “in order to pre­vent future Woolwich-style attacks”.

As I’ve writ­ten before, it was heart­en­ing that the UK Prime Min­is­ter said in the after­math of the attack that there would be no knee-jerk secur­ity reac­tion. How­ever, that has not deterred cer­tain intel­li­gence sock-puppets from polit­ical oppor­tunism — they stridently call for the resur­rec­tion of the draft Com­mu­nic­a­tions Data Bill that was earlier this year kicked into the long grass. If the hawks are suc­cess­ful, the new law would have implic­a­tions not only for our freedoms at home, but also for our policy and stand­ing abroad.

Recently the civil liber­ties camp acquired a sur­pris­ing ally in this debate, with MI5 unex­pec­tedly enter­ing the fray.  And rightly so. There is abso­lutely no need for this new legis­la­tion, the requis­ite powers are already in place. Senior secur­ity sources have argued that those cit­ing the Wool­wich attack to pro­mote the snoop­ers’ charter are using a “cheap argu­ment”.

As I said in this recent BBC radio inter­view, all the neces­sary laws are already in place for MI5 either to pass­ively mon­itor or aggress­ively invest­ig­ate per­sons of interest under the ori­ginal terms of IOCA (1985) and updated in the Reg­u­la­tion of Invest­ig­at­ory Powers Act (RIPA 2000).

There now appears to be little doubt that the two Wool­wich sus­pects were well and truly on the MI5 radar. It has been repor­ted that they had been tar­gets for at least 8 years and that Michael Ade­bolajo had been approached to work as an agent by MI5 as recently as 6 months ago.

One of his friends, Abu Nusay­bah, recor­ded an inter­view for BBC’s News­night pro­gramme last week, only to be arres­ted by counter-terrorism police imme­di­ately after­wards. He stated that Ade­bolajo had been tor­tured and threatened with rape after his arrest in Kenya en route to Somalia, and that this treat­ment may have flipped him into more viol­ent action. Indeed, the tale gets ever mur­kier, with reports yes­ter­day stat­ing that Ade­bolajo was snatched by the SAS in Kenya on the orders of MI5.

Other inform­a­tion has since been released by the organ­isa­tion Cage­Pris­on­ers indic­at­ing that Adebolajo’s fam­ily and friends had also been har­rassed to pres­sur­ize him into report­ing to MI5.

All of which obvi­ates the early claims that Ade­bolajo was either a “lone wolf” or a low-priority tar­get. It cer­tainly indic­ates to me that MI5 will have at the very least been mon­it­or­ing Adebolajo’s com­mu­nic­a­tions data, espe­cially if they were try­ing to recruit him as a source. If that indeed turns out to have been the case, then without doubt MI5 will also have been inter­cept­ing the con­tent of his com­mu­nic­a­tions, to under­stand his think­ing and assess his access. Any­thing less would have been slip­shod — a derel­ic­tion of duty — and all this could and should have been done under the exist­ing terms of RIPA.

So what are the chances of some real over­sight or answers?

If we’re talk­ing about an inde­pend­ent inquiry, the chances are slim: the Inquir­ies Act (2005) passed little noticed into law, but it means that the gov­ern­ment and the depart­ment under invest­ig­a­tion can pretty much determ­ine the scope and terms of the inquiry to which they are subject.

How­ever, might we nail the flag of hope to the mast of the Intel­li­gence and Secur­ity Com­mit­tee of Par­lia­ment (ISC) — the com­mit­tee tasked with over­see­ing the work of the UK intel­li­gence agen­cies? The new DG of MI5, Andrew Parker, has already sub­mit­ted a writ­ten report about Wool­wich and will be giv­ing evid­ence to the ISC in per­son next week about whether MI5 missed some vital intel­li­gence or dropped the ball.

Th ISC of Par­lia­ment was estab­lished as part of the Intel­li­gence Ser­vices Act (1994) — the law that finally brought MI6 and GCHQ under the umbrella of notional demo­cratic over­sight. MI5 had already come into the legal fold with the Secur­ity Ser­vice Act (1989).

As I have writ­ten before, ini­tially the ISC was a demo­cratic fig-leaf — its mem­bers were appoin­ted by the PM not Par­lia­ment, it repor­ted dir­ectly to the PM, and its remit only covered the policy, fin­ance and admin­is­tra­tion of the UK’s intel­li­gence agencies.

Until this year the ISC could not invest­ig­ate oper­a­tional mat­ters, nor could it demand to see doc­u­ments or ques­tion top spooks under oath. Indeed, it has been well repor­ted that senior spies and police have long evaded mean­ing­ful scru­tiny by being “eco­nom­ical with the truth”.

Former MI5 DG Sir Stephen Lander in 2001 said “I blanche at some of the things I declined to tell the com­mit­tee early on”; a more recent DG, Sir Jonathan Evans, had to admit in 2008 that MI5 had lied about its involve­ment in tor­ture; and Lord Blair, former Com­mis­sioner of the Met­ro­pol­itan Police, had to apo­lo­gise in 2008 for mis­lead­ing the ISC about the num­ber of thwarted ter­ror­ist attacks on his watch.

How­ever the cur­rent Chair of the ISC, Sir Mal­com Rif­kind, has pur­sued a more mus­cu­lar over­sight role. And it seems he has at least won some battles. The one good ele­ment to have come out of the con­ten­tious Justice and Secur­ity Act (2013) appears to be that the ISC has more dir­ect account­ab­il­ity to Par­lia­ment, rather than just to the PM (the devil is expressed in the detail: the ISC is now “of” Par­lia­ment, rather than “in” Parliament…).

Some­what more per­tin­ently, the ISC can now invest­ig­ate oper­a­tional mat­ters, demand papers and wit­nesses, and it appears they now have a spe­cial invest­ig­ator who can go and rum­mage around the MI5 Registry for information.

It remains to be seen how effect­ive the ISC will real­ist­ic­ally be in hold­ing the intel­li­gence agen­cies to account, even with these new powers. How­ever, Sir Mal­colm Rif­kind has good reason to know how slip­pery the spies can be — after all, he was the For­eign Sec­ret­ary in 1995/6, the years when MI6 was fund­ing Al Qaeda asso­ci­ates to assas­sin­ate Col­onel Gad­dafi of Libya.  The attack went wrong, inno­cent people were killed and, cru­cially, it was illegal under UK law, as MI6 had not reques­ted the prior writ­ten per­mis­sion for such a plot from the For­eign Sec­ret­ary, as required under Sec­tion 7(1) of the afore­men­tioned ISA (1994). Rif­kind has always claimed that he was not told about the plot by MI6.

So, in the interests of justice let us hope that the Rif­kind and the other mem­bers of the ISC fully exer­cise their powers and that MI5’s new DG, Andrew Parker is some­what more frank about the work of his agency than his pre­de­cessors have been. It is only through greater hon­esty and account­ab­il­ity that our intel­li­gence agen­cies can learn from the mis­takes of the past and bet­ter pro­tect our coun­try in the future.

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