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 coöper­a­tion 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 façade 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.