Parliamentary Evidence on the UK Investigatory Powers Bill

My written evidence to the Scrutiny Committee in the UK Houses of Parliament that is currently examining the much-disputed Investigatory Powers Bill (IP):

1. My name is Annie Machon and I worked as an intelligence officer for the UK’s domestic Security Service, commonly referred to as MI5, from early 1991 until late 1996. I resigned to help my partner at the time, fellow intelligence officer David Shayler, expose a number of instances of crime and incompetence we had witnessed during our time in the service.

2. I note that the draft IP Bill repeatedly emphasises the importance of democratic and judicial oversight of the various categories of intrusive intelligence gathering by establishing an Investigatory Powers Commissioner as well as supporting Judicial Commissioners. However, I am concerned about the real and meaningful application of this oversight.

3. While in the Service in the 1990s we were governed by the terms of the Interception of Communications Act 1985 (IOCA), the precursor to RIPA, which provided for a similar system of applications for a warrant and ministerial oversight.

4. I would like to submit evidence that the system did not work and could be manipulated from the inside.

5. I am aware of at least two instances of this during my time in the service, which were cleared for publication by MI5 in my 2005 book about the Shayler case, “Spies Lies, and Whistleblowers”, so my discussing them now is not in breach of the Official Secrets Act. I would be happy to provide further evidence, either written or in person, about these abuses.

6. My concern about this draft Bill is that while the oversight provisions seem to be strengthened, with approval necessary from both the Secretary of State and a Judicial Commissioner, the interior process of application for warrants will still remain opaque and open to manipulation within the intelligence agencies.

7. The application process for a warrant governing interception or interference involved a case being made in writing by the intelligence officer in charge of an investigation. This then went through four layers of management, with all the usual redactions and finessing, before a final summary was drafted by H Branch, signed by the DDG, and then dispatched to the Secretary of State. So the minister was only ever presented with was a summary of a summary of a summary of a summary of the original intelligence case.

8. Additionally, the original intelligence case could be erroneous and misleading. The process of writing the warrant application was merely a tick box exercise, and officers would routinely note that such intelligence could only be obtained by such intrusive methods, rather than exploring all open source options first. The revalidation process could be even more cavalier.

9. When problems with this system were voiced, officers were told to not rock the boat and just follow orders. During the annual visit by the Intelligence Intercept Commissioner, those with concerns were banned from meeting him.

10. Thus I have concerns about the realistic power of the oversight provisions written into this Bill and would urge an additional provision. This would establish an effective channel whereby officers with concerns can give evidence directly and in confidence to the Investigatory Powers Commissioner in the expectation that a proper investigation will be conducted and with no repercussions to their careers inside the agencies. Here is a link to a short video I did for Oxford University three years ago outlining these proposals:

11. This, in my view, would be a win-win scenario for all concerned. The agencies would have a chance to improve their work practices, learn from mistakes, and better protect national security, as well as avoiding the scandal and embarrassment of any future whistleblowing scandals; the officers with ethical concerns would not be placed in the invidious position of either becoming complicit in potentially illegal acts by “just following orders” or risking the loss of their careers and liberty by going public about their concerns.

12. I would also like to raise the proportionality issue. It strikes me that bulk intercept must surely be disproportionate within a functioning and free democracy, and indeed can actually harm national security. Why? Because the useful, indeed crucial, intelligence on targets and their associates is lost in the tsunami of available information. Indeed this seems to have been the conclusion of every inquiry about the recent spate of “lone wolf” and ISIS-inspired attacks across the West – the targets were all vaguely known to the authorities but resources were spread too thinly.

13. In fact all that bulk collection seems to provide is confirmation after the fact of a suspect’s involvement in a specific incident, which is surely specifically police evidential work. Yet the justification for the invasive intercept and interference measures laid out in the Bill itself is to gather vital information ahead of an attack in order to prevent it – the very definition of intelligence. How is this possible if the sheer scale of bulk collection drowns out the vital nuggets of intelligence?

14. Finally, I would like to raise the point that the phrase “national security” has never been defined for legal purposes in the UK. Surely this should be the very first step necessary before formulating the proposed IP Bill? Until we have such a legal definition, how can we formulate new and intrusive laws in the name of protecting an undefined and nebulous concept, and how can we judge that the new law will thereby be proportionate within a democracy?

MI5 officer has evidence of torture?

Well, this story is interesting me extremely, and for the obvious as well as the perhaps more arcanely legal reasons.

Apparently a former senior MI5 officer is asking permission to give evidence to the Intelligence and Security Committee in Parliament about the Security Service’s collusion in the US torture programme that was the pyroclastic flow from the 9/11 attacks in 2001.

I have long speculated about how people with whom I used to work, socialise with, have dinner with in the 1990s might have evolved from idealistic young officers into people who could condone or even participate in the torture of other human beings once the war on terror was unleashed in the last decade.

During the 1990s MI5 absolutely did not condone the use of torture – not only for ethical reasons, but also because an older generation was still knocking around and they had seen in the civil war in Northern Ireland quite how counter-productive such practices were.  Internment, secret courts, stress positions, sleep deprivation – all these policies acted as a recruiting sergeant for the Provisional IRA.

My generation – the first tasked with investigating the IRA in the UK and Al Qaeda globally – understood this.  We were there to run intelligence operations, help gather evidence, and if possible put suspected malefactors on trial. Even then, when ethical boundaries were breached, many raised concerns and many resigned.  A few of us even went public about our concerns.

But that is so much history.  As I said above, I have always wondered how those I knew could have stayed silent once the intelligence gloves came off after 9/11 and MI5 was effectively shanghaied into following the brutish American over-reaction.

Now it appears that there were indeed doubters within, there was indeed a divided opinion. And now it appears that someone with seniority is trying to use what few channels exist for whistleblowers in the UK to rectify this.

In fact, my contemporaries who stayed on the inside would now be the senior officers, so I really wonder who this is – I hope an old friend!

No doubt they will have voiced their concerns over the years and no doubt they will have been told just to follow orders.

I have said publicly over many years that there should be a meaningful channel for those with ethical concerns to present evidence and have them properly investigated. In fact, I have even said that the Intelligence and Security Committee in Parliament should be that channel if – and it’s a big if – they can have real investigatory powers and can be trusted not just to brush evidence under the carpet and protect the spies’ reputation.

So this takes me to the arcane legalities I alluded to at the start. During the David Shayler whistleblowing trials (1997-2003) all the legal argument was around the fact that he could have taken his concerns to any crown servant – up to the ISC or his MP and down to and including the bobby on the beat – and he would not have breached the Official Secrets Act. That was the argument upon which he was convicted.

Yet at the same time the prosecution also successfully argued during his trial in 2002 in the Old Bailey that there was a “clear bright line” against disclosure to anyone outside MI5 – (Section 1(1) OSA (1989) – without that organisation’s prior written consent.

The new case rather proves the latter position – that someone with ethical concerns has to “ask permission” to give evidence to the “oversight body”.

Only in the UK.

Now, surely in this uncertain and allegedly terrorist-stricken world, we have never had greater need for a meaningful oversight body and meaningful reform to our intelligence agencies if they go off-beam. Only by learning via safe external ventilation, learning from mistakes, reforming and avoiding group-think, can they operate in a way that is proportionate in a democracy and best protects us all.

Freedom Equals Surveillance

Here’s an interview I did for RT a while ago about the USA’s Orwellian NewSpeak about surveillance:

US_Freedom_Act_surveillance_act_in_disguise from Annie Machon on Vimeo.

German Netzpolitik journalists investigated for treason

Press freedom is under threat in Germany – two journalists and their alleged source are under investigation for potential treason for disclosing and reporting what appears to be an illegal and secret plan to spy on German citizens. Here’s the interview I did for RT.com about this yesterday:

German Netzpolitik journalists face treason charges from Annie Machon on Vimeo.

Merkel NSA phone tapping

My interview today for RT about the German prosecutor’s decision to stop the investigation of the NSA tapping Chancellor Angela Merkel’s mobile phone, and much more:

End of Merkel NSA Spy Probe Case on RT International from Annie Machon on Vimeo.

Re:publica – The War on Concepts

This week I made my first visit to the re:publica annual geekfest in Berlin to do a talk called “The War on Concepts”. In my view this, to date, includes the four wars – on drugs, terror, the internet, and whistleblowers. No doubt the number will continue to rise.

Here’s the video:

republica_2015_Annie_Machon_The_War_on_Concepts from Annie Machon on Vimeo.

Anything to Say? unveiled in Berlin

Last week artist Davide Dormino unveiled his sculpture celebrating whistleblowers in Alexanderplatz, Berlin.

Called “Anything to Say?”, the sculpture depicts Chelsea Manning, Edward Snowden and Julian Assange standing on three chairs, with an empty fourth chair beside them, upon which we are all encouraged to stand up on and speak our truth.

Davide invited me to do just that for the unveiling ceremony, along with German MP for the Green Party and whistleblower supporter, Hans Christian Stroebele and Wikileaks’ Sarah Harrison. Here’s a report:

Anything_to_Say?_sculpture_unveiled_in_Berlin from Annie Machon on Vimeo.

Code Red Media Launch in Perugia

I am very happy to announce a new initiative, Code Red,  that Simon Davies (the founder of Privacy International and The Big Brother Awards) and I have been organising over the last few months.  In fact, not just us, but a panoply of global privacy and anti-surveillance campaigners from many areas of expertise.

Simon and I have known each other for years, way back to 2002, when he gave one of the earliest Winston Awards to David Shayler, in recognition of his work towards trying to expose surveillance and protect privacy. That award ceremony, hosted by comedian and activist Mark Thomas, was one of the few bright points in that year for David and me – which included my nearly dying of meningitis in Paris and David’s voluntary return to the UK to “face the music”; face the inevitable arrest, trial and conviction for a breach of the Official Secrets Act that followed on from his disclosures about spy criminality.

Anyway, enough of a detour down memory lane – back to Code Red. Regular readers of this website will know that I have some slight interest in the need to protect our privacy for both personal reasons and societal good. Over the last 18 years since helping to expose the crimes of the British spies, I have worked with the media, lawyers, campaigners, hackers, NGOs, politicians, wonks, geeks, whistleblowers, and wonderfully concerned citizens around the world – all the time arguing against the encroaching and stealthy powers of the deep, secret state and beyond.

While many people are concerned about this threat to a democratic way of life, and in fact so many people try to push back, I know from experience the different pressures that can be exerted against each community, and the lack of awareness and meaningful communication that can often occur between such groups.

So when Simon posited the idea of Code Red – an organisation that can functionally bring all these disparate groups together, to learn from each other, gain strength and thereby work more effectively, it seemed an obvious next step.

Some progress has already been make in this direction, with international whistleblower conferences, cryptoparties, training for journalists about how to protect their sources, campaigns to protect whistleblowers, activist and media collectives, and much more.  We in Code Red recognise all this amazing work and are not trying to replicate it.

But we do want to do is improve the flow of communication – would it not be great to have a global clearing house, a record, of what works, what does not, a repository of expertise from all these inter-related disciplines from a round the world that we can all learn from?

This is one of the goals of Code Red, which launched to the media at the International Journalism Festival in Perugia a few weeks ago.  We were then lucky enough to also hold a launch to the tech/hacktivist community in Berlin a few days after at C Base – the mother-ship of hackers.

Here is the film of the Perugia launch:

Code Red – launched in Perugia, April 2015 from Annie Machon on Vimeo.

AcTVism film trailer

The AcTVism Munich media collective is releasing a film on 19th April featuring Noam Chomsky, The Real News Network‘s Paul Jay and  myself.

Filmed last January, we discussed the old and new media, activism, and much more.

Here’s the trailer:

AcTVism Trailer – Chomsky, Machon and Jay from Annie Machon on Vimeo.

Whistleblower panel discussion at Logan Symposium

Here is a panel discussion I did about whistleblowing at the Logan Symposium in London last November. With me on the panel are Eileen Chubb, a UK health care whistleblower who runs Compassion in Care and is campaigning for Edna’s Law, and Bea Edwards of the US Government Accountability Project.  With thanks to @newsPeekers for filming this.

newsPeeksLIVE whistleblower interview from Annie Machon on Vimeo.

Sam Adams Award for Integrity in Intelligence, Berlin 2015

Last week in Berlin the 2015 Sam Adams Award for Integrity in Intelligence was presented to the former Technical Director of the NSA, whistleblower and tireless privacy advocate, William Binney.

A 36-year intelligence agency veteran, Bill Binney resigned from the NSA in 2001 and became a whistleblower after discovering that elements of a data-monitoring programme he had helped develop were being used to spy on Americans.  He explained that he “could not stay after the NSA began purposefully violating the Constitution”.

Bill remains tireless, pledging to spend the remainder of his years speaking out across the world and working to reform the gross governmental illegality and stupidity of intercepting trillions and trillions of communications of innocent people’s phone calls, emails and other forms of data. Bill states “it’s violated everyone’s rights. It can be used to spy on the whole world.”

The Sam Adams Associates decided to hold the ceremony in Berlin as it is currently a global hub for privacy-minded individuals – journalists, film-makers, technologists, whistleblowers and campaigners.

Binney_at_BundestagHistory has made Germany much more sensitive to the need for basic rights, such as privacy, than many other soi disant western democracies, and the disclosures of Edward Snowden, including the collusion of German intelligence agencies with the NSA as well as the bugging of Chancellor Angela Merkel’s mobile phone, have caused outrage across the country.

Plus, only last year Bill Binney was invited to give evidence to the German Bundestag’s NSA Inquiry Commission.

SAA_Photo_Berlin_2015Whistleblowers, former intelligence officers, military officers, diplomats and lawyers flew in from around the world to honour Bill Binney. The Sam Adams Associates attending the event were Ray McGovern (CIA), Todd Pierce (US military lawyer), Coleen Rowley (FBI), Elizabeth Murray (US national intelligence council), Craig Murray (UK ambassador), Katherine Gun (GCHQ), Tom Drake (NSA), Jesselyn Radack (US DoJ), David MacMichael (CIA), and myself (MI5).

We were also pleased that Edward Snowden was able to join us via live link to give a  powerful speech honouring Bill Binney.

So, here is the film of a wonderfully touching ceremony, and congratulations to Bill Binney for the courage he has already demonstrated and continues to display:

Sam Adams Award Berlin 2015 from Annie Machon on Vimeo.

And here we have the text of the award citation to Bill Binney:

The Sam Adams Associates for Integrity in Intelligence

Presents its INTEGRITY AWARD for 2015 to:

William Binney

Know all ye by these presents that William Binney is hereby honored with the traditional Sam Adams Corner-Brightener Candlestick Holder, in symbolic recognition of Mr. Binney’s courage in shining light into dark places.

Bill Binney represents the patriotic side of a duel between two unequal adversaries: an exceedingly powerful and ruthless state and Bill, an official who would not break his solemn oath to defend its Constitution.  Like Tom Drake and Ed Snowden, he was determined to preserve his integrity, his privacy, and his personal honor.

On both sides of the Atlantic we hear the mantra: “After 9/11/2001 EVERYTHING CHANGED;” just like “everything changed” after the burning of the Reichstag on 2/27/1933.  That event led many Germans into what the writer Sebastian Haffner called “sheepish submissiveness” — with disastrous consequences.

As a young German lawyer in Berlin at the time, Haffner wrote in his diary one day after the Reichstag fire that Germans had suffered a nervous breakdown.  “No one saw anything out of the ordinary in the fact that, from now on, one’s telephone would be tapped, one’s letters opened, and one’s desk might be broken into.”

What was missing, wrote Haffner, was “a solid inner kernel that cannot be shaken by external pressures and forces, something noble and steely, a reserve of pride, principle, and dignity to be drawn on in the hour or trial.”

We are grateful that these traits were NOT missing in Bill Binney.  Nor were they missing in Edward Snowden, whose patriotic risk-taking opened the way for Bill and his colleagues to expose the collect-it-all fanatics and the damage they do to privacy everywhere.

What Ed Snowden called “turnkey tyranny” can still be prevented.  But this can only happen, if patriots like Bill Binney can jolt enough people out of “sheepish submissiveness.” Goethe understood this 200 years ago when he warned, “No one is more a slave than he who thinks himself free, but is not.”

“Niemand ist mehr Sklave, als der sich für frei hält, ohne es zu sein*.

Presented this 22nd day of January 2015 in Berlin by admirers of the example set by the late CIA analyst, Sam Adams.

And finally, here are some extra interviews from the night with Bill Binney, Tom Drake, Jesselyn Radack, and Coleen Rowley:

With thanks to Berlin Moscow on Unter den Linden and the Dreger Group for hosting the event, to professional photographer Johanna Hullar for all her great pictures of the ceremony.

Turkish TV Interview

Here’s the first half of a long interview I did last month for the investigative news programme in Turkey, Yaz Boz, discussing all things whistleblower and tech security:

Yaz Boz – Turkish news Interview from Annie Machon on Vimeo.

Swedish SVT TV Interview, November 2014

Here’s an interview I did while at the excellent Internetdagarna conference in Stockholm last month.  It covers all things whistleblower, going on the run, and spy accountability:

Interview on Swedish SVT TV, November 2014 from Annie Machon on Vimeo.

Privacy as Innovation Interview

A recent interview I gave while in Stockholm to the Privacy as Innovation project:

privacy_innovation