Magna Carta versus Snoopers’ Charter

black_sheep_text_OK, this has to be a bleeding obvious point, but I feel moved to make it anyway.

After the brutal Woolwich murder of  Drummer Lee Rigby,  there were calls from the British securocrats to resurrect the discredited Communications Data bill – aka the Snoopers’ Charter.  Capitalising on the nation’s shock, they believed it was the right time to push through a particularly draconian piece of legislation, as I wrote at the time.

The aim of the Snooper’s Charter is to store all the meta-data of our communications in the UK, which means they can potentially be used as evidence against us at some nebulous future point if the legal goalposts shift – as they seem to be doing at an alarming rate these days.

Not only are activists now being called “domestic extremists” or “terrorists”, but the concept of secret courts seems to be metastasising at an alarming rate – it is not longer just a concept used in immigration and now civil courts, it has reached the giddy heights of the Supreme Court in the UK, with the secret hearings around the Iranian Mellat bank. Top UK Law Lord Neuberger was recently quoted, in the Daily Mail of all places, as saying that secret justice is no justice.

But I digress. Post-Woolwich, the securocrats were overtaken by events. The courageous Edward Snowden blew the whistle on the fact that the NSA and its pals like GCHQ are already hoovering up all our electronic communications, as well as spying on top politicians. As a result the securocrats have gone to ground, but no doubt they will try to slither out again soon.

Or perhaps not – today still further surveillance horrors emerged as a result of the Snowden disclosures: the UK listening post GCHQ, which has long had an unhealthily incestuous relationship with the NSA, has gone to the next level with the “Total Mastery of the Internet” programme, codenamed “TEMPORA”.

The reported capabilities of TEMPORA are huge – GCHQ can tap into all the information flowing through the trans-Atlantic fibre optic cables and beyond. It is truly sucking on the fire hydrant of information

This should be gobsmacking news, but the concept was already reported in The Register 4 years ago. The trouble is, nobody really cared then or just thought it was a bunch of geeks being paranoid. Now this is global news thanks to the brave actions of a whistleblower.

One has to wonder if the UK government is so keen to ram the Snoopers’ Charter into law as a retrograde justification for the endemic PRISM and TEMPORA snooping that has already been going on for years? And let’s not forget the old prototype snooping programe, ECHELON

As a leading European privacy campaigner recently wrote, by the year 1215 British barons had more basic rights under the Magna Carta than we modern day serfs can possibly aspire to now.

How can we be going backwards, so fast?

O tempora, o mores indeed….. some classicist, somewhere in the bowels of the British intelligence agencies, is having a laugh.

UK spies get a B+ for intrusive surveillance in 2010

Black_sheep?The quangocrats charged with overseeing the legality of the work of the UK spies have each produced their undoubtably authoritative reports for 2010. 

Sir Paul Kennedy, the commissioner responsible for overseeing the interception of communications, and Sir Peter Gibson, the intelligence services commissioner, both published their reports last week.  

Gibson has, of course, honourably now stood down from his 5-year oversight of MI5, MI6, and GCHQ in order to head up the independent enquiry into spy complicity in torture. 

And both the reports say, naturally, that it's all hunky-dorey.  Yes, there were a few mistakes (well, admistrative errors – 1061 over the last year), but the commissioners are confident that these were neither malign in intent nor an indication of institutional failings. 

So it appears that the UK spies gained a B+ for their surveillance work last year.

Both commissioners pad out their reports with long-winded descriptions of what precisely their role is, what powers they have, and the full, frank and open access they had to the intelligence officers in the key agencies. 

They seem sublimely unaware that when they visit the spy agencies, they are only given access to the staff that the agencies are happy for them to meet – intelligence officers pushed into the room, primped out in their party best and scrubbed behind the ears – to tell them what they want to hear. 

Any intelligence officers who might have concerns have, in the past, been rigorously banned from meeting those charged with holding the spies to democratic account…..

….which is not much different from the oversight model employed when government ministers, the notional political masters of MI6, MI6 and GCHQ, sign off on bugging warrants that allow the aggressive investigation of targets (ie their phones, their homes or cars, or follow them around).  Then the ministers are only given a summary of a summary of a summary, an application that has been titrated through many managerial, legal and civil service filters before landing on their desks.  

So, how on earth are these ministers able to make a true evaluation of the worth of such an application to bug someone? 

They just have to trust what the spies tell them – as do the commissioners. 

The Age of Transparency?

Black_sheep_text?Well, this is an interesting case in the US.  Thomas Drake, a former senior executive at the American National Security Agency (NSA), the US electronic eavesdropping organisation, is being charged under the 1917 US Espionage Act for allegedly disclosing classified information to a journalist about, gasp, the mismanagement, financial waste and dubious legal practices of the spying organisation.  These days it might actually be more newsworthy if the opposite were to be disclosed….

However, under the terms of the Espionage Act, this designates him an enemy of the American people on a par with bona fide traitors of the past who sold secrets to hostile powers during the Cold War.

It strikes me that someone who reports malpractice, mistakes and under-performance on the part of his (secretive) employers might possibly be someone who still has the motivation to try to make a difference, to do their best to protect people and serve the genuine interests of the whole country.  Should such people be prosecuted or should they be protected with a legal channel to disclosure? 

Thomas Drake does not sound like a spy who should be prosecuted for espionage under the USA's antiquated act, he sounds on the available information like a whistleblower, pure and simple.  But that won't necessarily save him legally, and he is apparently facing decades in prison.  President Obama, who made such a song and dance about transparency and accountability during his election campaign, has an even more egregious track record than previous presidents for hunting down whistleblowers – the new "insider threat".

This, of course, chimes with the British experience.  So-called left-of-centre political candidates get elected on a platform of transparency, freedom of information, and an ethical foreign policy (think Blair as well as Obama), and promptly renege on all their campaign promises once they grab the top job. 

In fact, I would suggest that the more professedly "liberal" the  government, the more it feels empowered to shred civil liberties.  If a right-wing government were to attack basic democratic freedoms in such a way, the official opposition (Democrats/Labour Party/whatever) would be obliged to make a show of opposing the measures to keep their core voters sweet.  Once they're in power, of course, they can do what they want.

One stark example of this occured during the passing of the British Official Secrets Act (1989) which, as I've written before, was specifically designed to gag whistleblowers and penalise journalists.  The old OSA (1911) was already in place to deal with real traitors.

And who voted against the passing of this act in 1989?  Yes, you've guessed it, all those who then went on to become Labour government ministers after the 1997 Labour election landslide – Tony Blair, Jack Straw, the late Robin Cook and a scrum of other rather forgettable ministers and Attorney Generals…..  And yet it was this very New Labour government in the UK that most often used the OSA to halt the free-flow of information and the disclosures of informed whistleblowers.  Obama has indeed learnt well.

It's an oldie but still a goodie: as one of my lawyers once wryly told me, it doesn't matter whom you vote for, the government still gets in…..

Can the product of bugs be used as court evidence in the UK?

Black_sheep?_textAn interesting story on Channel 4 TV news today: four London police officers are being prosecuted for beating up Babar Ahmad in 2003 while arresting him on suspicion of terrorism charges.  And it turns out that the key evidence for the prosecution comes not from Ahmad’s complaint, nor from photographs of his injuries, but from the product of an eavesdropping device, more commonly known as a bug, planted in his home by the UK Security Service, MI5.

It’s interesting in itself that MI5 has released this information for court proceedings against Met counter-terrorism officers.  I shall resist speculating now, but shall be watching developments with interest.

But the point I want to make quickly today is about the use of intercept material as legal evidence in UK courts.  This can potentially be crucial for lawyers when speaking to their clients, journalists who wish to protect their sources, polticial activists, and those who simply wish to protect their inherent right to privacy as the encroaching electronic surveillance state continues to swell.

It can also be potentially useful information for MPs talking to their constituents.  Indeed, returning to the years-long case of Babar Ahmad, there was a media furore in 2008 when it was revealed that the Met had authorised the bugging of his conversations with his MP Sadiq Khan during prison visits.  

And who was the commanding officer who authorised this?  Step forward former Met Counter Terrorism supremo, Andy Hayman, that much esteemed defender of British civil liberties who recently suggested “dawn raids” and “snatch squads ” be used against political activists.

Unlike most other western countries, the UK does not allow the use of telephone intercept as evidence in a court of law.  As I’ve written before, it’s a hangover from the cold war spying game.  MI5 has traditionally seen phone taps as a source of intelligence, not evidence, despite the fact that much of their work is notionally more evidentially based in the 21st century.  It also still remains a subject of debate and a fiercely fought reargard action by the spies themselves, who claim telecheck is a “sensitive technique”. 

As if we don’t all know that our phones can be bugged…..

However, eavesdropping devices that are planted in your property – your home, your office, even your car – can indeed produce evidence that can be used against you in a court of law.   All this requires a Home Office Warrant (HOW) to make it legal, but Home Secretaries are traditionally reluctant to refuse a request in the interests of “national security”.  Moreover, if the owner of the property agrees to a bug, even without a HOW, they can be legally used.  So if you live in rented accommodation, befriend your landlord!

Not a lot of people know all that – but we should. 

Bleat: Knowledge is power – the MI6 prime directive

Black_sheep?By way of random linkage, I stumbled across this little gem of an article by that old spook apologist extraordinaire, Con Coughlin.  He’s writing about the first public speech by a serving head of (SIS) MI6, which was addressed to the Society of Editors last autumn.  Dear old Con’s interpretation of events is slightly different from mine at the time…..

The paragraph that leapt out at me was this:

“Sir John Sawers, the current “C” in charge of MI6, made much the same point yesterday in his ground-breaking speech to the Society of Editors. He explained that acquiring secret intelligence, and keeping it secret, remains his organisation’s fundamental objective.”

Well, excuse my naivety but I thought that the role of the British intelligence agencies was to protect “national security”, whatever that might mean according to the flavour of the day, not merely to acquire and keep secrets.

Well, I obviously remain irredeemably idealistic.  Perhaps, as my father hopefully states on occasion, one day I’ll eventually grow up…..


Just how many unaccountable spy organisations are out there in the UK?

Black_sheep?Unsuccessfully resisting the temptation to say that the obvious ones (MI5, MI6 and GCHQ) are still pretty unaccountable, I was intrigued by a few recent articles in The Guardian

George Monbiot, someone I have enormous respect for but don’t always see eye-to-swivelling-eye with, wrote an excellent piece about the aftershocks of the Mark Kennedy/undercover cop scandal earlier this year. 

Monbiot calls for the abolition of that democratically unaccountable senior plod organisation and PLC, the Association of Chief Police Officers (ACPO).  This was the organisation under whose aegis the undercover cops spied on hapless environment protestors – the very people who are now being encouraged to appeal against their convictions by Director of Public Prosecutions, no less.

Monbiot quotes a couple of acronyms covering this shady world of police spying: NPOIU and NECTU.   But in another Guardian article today – about the police taking pre-emptive steps against so-called anarchists in the run-up to the royal wedding – I saw this:

“The Met is also getting intelligence from the Fixated Threat Assessment Centre, a police unit set up in 2006 together with mental health agencies to identify individuals who are obsessed with members of the royal family, politicians or celebrities.”

Que?  When was this unit set up, and who runs it?  What about data protection and privacy of medical records?  Or are these notions already just quaint anachronisms, and a de facto Big Brother database is already in place?

Perhaps it is time for ACPO to make a clean breast of all the little groupings it has set up over the last decade…..

The role of intelligence agencies within a democracy

I recently stumbled across this excellent article in the Trinidad Express, of all places.  It appears that the state of Trinidad and Tobago is in the throes of debating the legitimate role of intelligence agencies within a democracy.

Alana Wheeler, a Fulbright Scholar with a Masters degree in National Security Studies, contributes a clear and well-argued article that gets to the heart of these issues; what is “national security” and what is the best way to protect a nation’s integrity within a legal, proportionate and democratic framework?

If the democratic movements within countries like Tunisia, Egypt and Libya are allowed to coalesce organically and unhindered, no doubt this also be a key issue for their new constitutions – especially after decades of repression and fear meted out by brutal securocrats.

So why the hell can’t we have such an informed debate about these issues in the “mature democracies” of UK or the USA?

Bleat: the assassination of dissidents

Black_sheep?OK, so I'm not sure if my concept of Bleats (half blog, half tweet) is being grasped wholeheartedly.  But so what – it makes me laugh and the Black Sheep shall perservere with a short blog post…..

So I'm a bit puzzled here.  UK Prime Minister Dave Cameron is quoted in today's Daily Telegraph as saying that:

"It is not acceptable to have a situation where Colonel Gaddafi can be murdering his own people using aeroplanes and helicopter gunships and the like and we have to plan now to make sure if that happens we can do something to stop it."

But do his American best buddies share that, umm, humane view?  First of all they have the CIA assassination list which includes the names of US citizens (ie its own people); then those same "best buddies" may well resort to assassinating Wikileaks's Julian Assange, probably the most high profile dissident in international and diplomatic circles at the moment; plus they are already waging remote drone warfare on many hapless Middle Eastern countries – Yeman, Afghanistan, Pakistan…..

Oh, and now the UK government seems poised to launch covert spy drones into the skies of Britain.  Even the UK's most right-wing mainstream newspapers, the Daily Telegraph and the Daily Mail, expressed concern about this today.  Apparently these drones have yet to be weaponised…..

It's a slippery slope down to an Orwellian nightmare.


BBC article: could 7/7 have been prevented?

Peter Taylor, a respected journalist at the BBC, argues that if there had been more cooperation between MI5 and regional police Special Branches, then the 7/7 bombings in London in 2005 could have been prevented.  His thesis appears to be that MI5 did not work closely enough with the police (the executive branch) of the UK’s intelligence community: the aptly-named Operation Crevice has exposed the cracks in the unified public facade of the UK intelligence community.

However, Taylor assures us that this problem is in the past, with MI5 officers and Special Branch police now happily working side by side in regional offices across the UK.  So that’s OK then.

It continues to surprise me that seasoned British journalists repeatedly fall into the post-9/11 group-think of the USA – that terrorism is a new phenomenon.  Rather startlingly, Taylor’s article even asserts that the FBI had the Crevice information in real-time, while the West Yorks SB was left in the dark.

Those in the UK with a memory longer than a mayfly’s will be aware that this country endured 30 years of Irish Republican terrorism, and during the 1990s MI5 had lead responsibility for investigating this threat.  So from 1993 the spooks did indeed work side-by-side with their regional SB counter-parts across the country.  During this period the emphasis was on gathering both intelligence to pre-emptively thwart terrorist plots and also evidence to use in the ensuing court cases.  And there were some notable successes.

So what changed in the following decade?  Did the spooks retreat back behind the barricades of their London HQ, Thames House, as the ink dried on the Good Friday Agreement?  Were the hard-won lessons of the 1990s so quickly forgotten?

Well, certainly other lessons from the civil war in Nortern Ireland appear to have been expunged from the collective intelligence memory.  For example, the use of torture, military tribunals, internment and curfews were all used extensively in the early years of the NI conflict and all were spectacularly counter-productive, acting as a recruiting ground for new generations of terrorists.  Yet these practices now once again appear to be implicitly condoned by MI5 and MI6 in the USA’s brutal “war on terror”.

So one would hope that this new BBC programme calls for a reappraisal of our intelligence infrastructure.  Why should we mindlessly continue to accept the status quo, when this results in lessons being forgotten and mistakes being repeated?  How about the BBC calling for a root and branch review of the threats the UK realistically faces, and the most efeective way to guard against them, while working within the democratic process?



New attack on Wikileaks

I read this rather worrying article in The Independent today.  I know that this is refracted through the mainstream media, but if it is accurate….

Why am I so concerned?  Well, the article appears to show that vital coding to enable secret submissions from potential whistleblowers across the world was removed from the Wikileaks site a few months ago.

Now, unfortunately I’m not a geek, but I presume this means that potential whistleblowers have been unable to submit information to Wikileaks over the last few months – just at the time when the website hit the global consciousness.

But the worst case scenario would be if, just when potential whistleblowers are most likely to have become aware of the site and want to use it, the protection of anonymity was unexpectedly and surreptitiously removed from the website when they make submissions.

Either way, we urgently need clarification.