Alastair Campbell — guilty of breaching the OSA?

Alastair_Campbell_1I have long sus­pec­ted that Alastair Camp­bell, Labour’s former Dir­ect­or of Com­mu­nic­a­tions, may poten­tially have broken the UK’s Offi­cial Secrets Act.  Now prima facie evid­ence is begin­ning to emerge that he did indeed breach the “clear bright line” against unau­thor­ised dis­clos­ure of intelligence. 

I know that the Met­ro­pol­it­an Police have their hands full invest­ig­at­ing the melt­down that is the News of the World hack­ing scan­dal — and also try­ing to replace all those seni­or officers who had to resign because of it — but they do have a duty to invest­ig­ate crime.  And not just any old crime, in this case, but one that has poten­tially threatened the very basis of our nation­al security.

Why do I say this? 

Sun_45_minutes_from_doomYou’ll no doubt have some vague recol­lec­tion that, in the run-up to the 2003 Iraq War, the Brit­ish gov­ern­ment pro­duced a couple of reports “mak­ing a case for war”.  The first, the Septem­ber Dossier (2002), is the one most remembered, as this did indeed sex up the case for war, as well as include fake intel­li­gence about Sad­dam Hus­sein try­ing to acquire urani­um from Niger.  Most mem­or­ably it led to the “Brits 45 minutes from Doom” front-page head­line in Rupert Mur­doch’s The Sun news­pa­per, no less, on the eve of the cru­cial war vote in Parliament.

There was also the notori­ous leaked Down­ing Street Memo, where the then-head of MI6, Sir Richard Dear­love ©, was minuted as say­ing that the intel­li­gence and facts were being fit­ted around the [pre­de­ter­mined war] policy.

How­ever, for the pur­poses of a pos­sible Regina v. Camp­bell day in court, it is the second report that requires our attention.

It was pub­lished in Feb­ru­ary 2003, just before “shock and awe” was launched to lib­er­ate the grate­ful Iraqi people.   This report became known as the “Dodgy Dossier”, as it was largely lif­ted from a 12 year old PhD thes­is that the spin doc­tors had found on the inter­net.  How­ever, it also included nug­gets of brand-new and unas­sessed intel­li­gence from MI6.  Indeed, even the tooth­less Intel­li­gence and Secur­ity Com­mit­tee in Par­lia­ment stated in para­graph 82 of its 2002–2003 Annu­al Report ( Down­load ISC_2003) that:

We believe that mater­i­al pro­duced by the [intel­li­gence] Agen­cies can be used in pub­lic­a­tions and attrib­uted appro­pri­ately, but it is imper­at­ive that the Agen­cies are con­sul­ted before any of their mater­i­al is pub­lished. This pro­cess was not fol­lowed when a second doc­u­ment was pro­duced in Feb­ru­ary 2003. Although the doc­u­ment did con­tain some intel­li­gence-derived mater­i­al it was not clearly attrib­uted or high­lighted amongst the oth­er mater­i­al, nor was it checked with the Agency provid­ing the intel­li­gence or cleared by the JIC pri­or to pub­lic­a­tion. We have been assured that sys­tems have now been put in place to ensure that this can­not hap­pen again, in that the JIC Chair­man endorses any mater­i­al on behalf of the intel­li­gence com­munity pri­or to pub­lic­a­tion.

ISC_Iraq_reportAt the time it was repor­ted that Blair and Camp­bell had spon­tan­eously dis­trib­uted this report to journ­al­ists trav­el­ling with them on a tour of the Far East.   The ISC con­firmed that the intel­li­gence had been passed to journ­al­ists without the per­mis­sion of MI6 in its Septem­ber 2003 spe­cial report — “Iraq Weapons of Mass Destruc­tion: Intel­li­gence and Assess­ments” (see pars 131 to 134):

The doc­u­ment was ori­gin­ally giv­en to a num­ber of journ­al­ists over the week­end of
1 and 2 Feb­ru­ary and then placed in the Lib­rary of the House on 3 Feb­ru­ary. The Prime
Min­is­ter described the doc­u­ment as follows:

We issued fur­ther intel­li­gence over the week­end about the infra­struc­ture of
con­ceal­ment. It is obvi­ously dif­fi­cult when we pub­lish intel­li­gence reports, but I hope
that people have some sense of the integ­rity of our secur­ity ser­vices. They are not
pub­lish­ing this, or giv­ing us this inform­a­tion, and mak­ing it up. It is the intel­li­gence
that they are receiv­ing, and we are passing on to people. In the dossier that we
pub­lished last year, and again in the mater­i­al that we put out over the week­end, it is
very clear that a vast amount of con­ceal­ment and decep­tion is going on.”

Con­clu­sions:

The Com­mit­tee took evid­ence on this mat­ter from the Chief of the SIS on both
12 Feb­ru­ary and 17 July and sep­ar­ately from Alastair Camp­bell on 17 July. Both agreed
that mak­ing the doc­u­ment pub­lic without con­sult­ing the SIS or the JIC Chair­man was
a “cock-up”. Alastair Camp­bell con­firmed that, once he became aware that the
proven­ance of the doc­u­ment was being ques­tioned because of the inclu­sion of
Dr Al-Marashi’s work without attri­bu­tion, he tele­phoned both the Chief of the SIS and
the JIC Chair­man to apologise.

We con­clude that the Prime Min­is­ter was cor­rect to describe the doc­u­ment as
con­tain­ing “fur­ther intel­li­gence… about the infra­struc­ture of con­ceal­ment.… It is the
intel­li­gence that they [the Agen­cies] are receiv­ing, and we are passing on to people.”

How­ever, as we pre­vi­ously con­cluded, it was a mis­take not to con­sult the
Agen­cies before their mater­i­al was put in the pub­lic domain. In evid­ence to us the
Prime Min­is­ter agreed. We have repor­ted the assur­ance that we have been giv­en
that in future the JIC Chair­man will check all intel­li­gence-derived mater­i­al on
behalf of the intel­li­gence com­munity pri­or to publication.”

Iraq_supergunCru­cially, Blair and Camp­bell had jumped the (old Iraqi super-) gun by issu­ing this inform­a­tion, but Camp­bell seems to have got away with it by describ­ing such a breach of the OSA as a “cock-up”.  Or per­haps just anoth­er pre­cip­it­ous “rush of blood to the head” on his part, as recently described in the long-sup­pressed testi­mony of SIS2 revealed around the Chil­cot Enquiry and repor­ted in The Guard­i­an:

Papers released by the Chil­cot inquiry into the war show that an MI6 officer, iden­ti­fied only as SIS2, had reg­u­lar con­tacts with Camp­bell: “We found Alastair Camp­bell, I think, an enthu­si­ast­ic indi­vidu­al, but also some­what of an unguided mis­sile.” He added: “We also, I think, suffered from his propensity to have rushes of blood to the head and pass vari­ous stor­ies and inform­a­tion to journ­al­ists without appro­pri­ate pri­or con­sulta­tion” (my emphasis).

So why do I sug­gest that Camp­bell could be liable for pro­sec­u­tion?  It appears that he was a “noti­fied per­son” for the pur­poses of Sec­tion 1(1) of the OSA.  While not employed by the intel­li­gence agen­cies, noti­fied per­sons have reg­u­lar access to intel­li­gence mater­i­al and are sub­jec­ted to the highest clear­ance — developed vet­ting — in the same way as the full-time spooks.  As such, they are also bound by the law against dis­clos­ure of such mater­i­al without the pri­or writ­ten per­mis­sion of the head of the agency whose intel­li­gence they want to dis­sem­in­ate.  There is no room for manœuvre, no dam­age assess­ment, and no pub­lic interest defence.  The law is clear. 

And a report in today’s Tele­graph about Andy Coulson and the phone-hack­ing scan­dal seems to show clearly that Camp­bell was just such a noti­fied person:

Unlike Alastair Camp­bell and oth­er pre­vi­ous hold­ers of the Down­ing Street com­mu­nic­a­tions dir­ect­or role, Mr Coulson was not cleared to see secret intel­li­gence reports and so was spared the most detailed scru­tiny of his back­ground and per­son­al life.….

The only people who will be sub­ject to developed vet­ting are those who are work­ing in secur­ity mat­ters reg­u­larly and would need to have that sort of information.

The only spe­cial advisers that would have developed vet­ting would be in the For­eign Office, Min­istry of Defence and maybe the Home Office. Andy Coulson’s role was dif­fer­ent to Alastair Camp­bell’s and Jonath­an Powell.

Alastair Camp­bell could instruct civil ser­vants. This is why [Coulson] was­n’t neces­sar­ily cleared. Giv­en [the nature of] Andy Coulson’s role as more stra­tegic he would­n’t have neces­sar­ily have been sub­ject to developed vetting.”

So it would appear that Alastair Camp­bell is bang to rights for a breach of the Offi­cial Secrets Act under Sec­tion 1(1).  He released new, unas­sessed and uncleared MI6 intel­li­gence with­in the dodgy dossier.  This is not just some tech­nic­al  infrac­tion of the law — although even if it were, he would still have a case to answer.

EMBNo, this report led inex­or­ably to our coun­try going to war against Iraq, shoulder to shoulder with the US, and the res­ult­ing deaths, maim­ings, pois­on­ings and dis­place­ment of mil­lions of inno­cent Iraqi people.  It has also dir­ectly increased the ter­ror­ist threat to the UK, as Tony Blair was offi­cially warned pre-Iraq war by the then-head of MI5, Eliza Man­ning­ham-Buller.  With the dodgy dossier, Camp­bell has dir­ectly harmed count­less lives and our nation­al security.

Of course, many of us might fan­tas­ise about war­mon­gers get­ting their just deserts in The Hag­ue.  But per­haps the OSA could prove to be Al Camp­bell’s Al Capone-style tax eva­sion moment.

Now, what about The Right Hon­our­able Tony Blair?

Guardian article: the role of the spies in the UK

Here’s the text of an art­icle I wrote for The Guard­i­an a while ago, where I sug­gest we need a fresh per­spect­ive and some clear think­ing on the role of the spies in the UK

Worth reit­er­at­ing, fol­low­ing the pre-empt­ive arrest of protesters: 

Mark_KennedyThe cas­cade of rev­el­a­tions about secret police­men, start­ing with PC Mark Kennedy/environmental act­iv­ist “Mark Stone”, has high­lighted the iden­tity crisis afflict­ing the Brit­ish secur­ity estab­lish­ment. Private under­cov­er police units are hav­ing their James Bond moment – cider shaken, not stirred – while MI5 has become ever more plod-like, yet without the accom­pa­ny­ing over­sight. How has this happened to our demo­cracy without any pub­lic debate?

From the late 19th cen­tury the Met­ro­pol­it­an Police Spe­cial Branch invest­ig­ated ter­ror­ism while MI5, estab­lished in 1909, was a counter-intel­li­gence unit focus­ing on espi­on­age and polit­ic­al “sub­ver­sion”. The switch began in 1992 when Dame Stella Rim­ing­ton, then head of MI5, effected a White­hall coup and stole primacy for invest­ig­at­ing Irish ter­ror­ism from the Met. As a res­ult MI5 magic­ally dis­covered that sub­ver­sion was not such a threat after all – this rev­el­a­tion only three years after the Ber­lin Wall came down – and trans­ferred all its staff over to the new, sexy counter-ter­ror­ism sec­tions. Since then, MI5 has been eagerly build­ing its counter-ter­ror­ism empire, des­pite this being more obvi­ously evid­en­tial police work.

Spe­cial Branch was releg­ated to a sup­port­ing role, dab­bling in organ­ised crime and anim­al rights act­iv­ists, but not ter­ribly excited about either. Its prestige had been ser­i­ously tar­nished. It also had a group of exper­i­enced under­cov­er cops – known then as the Spe­cial Duties Sec­tion – with time on their hands.

Acpo_logoIt should there­fore come as little sur­prise that Acpo, the private lim­ited com­pany com­pris­ing seni­or police officers across the coun­try, came up with the bril­liant idea of using this skill-set against UK “domest­ic extrem­ists”. Acpo set up the Nation­al Pub­lic Order Intel­li­gence Unit (NPOIU). This first focused primar­ily on anim­al rights act­iv­ists, but mis­sion creep rap­idly set in and the unit’s role expan­ded into peace­ful protest groups. When this unac­count­able, Stasi-like unit was revealed it rightly caused an out­cry, espe­cially as the term “domest­ic extrem­ist” is not recog­nised under UK law, and can­not leg­ally be used as jus­ti­fic­a­tion to aggress­ively invade an indi­vidu­al’s pri­vacy because of their legit­im­ate polit­ic­al beliefs and act­iv­ism. So, plod has become increas­ingly spooky. What of the spooks?

As I men­tioned, they have been aggress­ively hoover­ing up the pres­ti­gi­ous counter-ter­ror­ism work. But, des­pite what the Amer­ic­ans have hys­ter­ic­ally asser­ted since 9/11, ter­ror­ism is not some unique form of “evil­tude”. It is a crime – a hideous, shock­ing one, but still a crime that should be invest­ig­ated, with evid­ence gathered, due pro­cess applied and the sus­pects on tri­al in front of a jury.

A mature demo­cracy that respects human rights and the rule of law should not intern sus­pects or render them to secret pris­ons and tor­ture them for years. And yet this is pre­cisely what our spooks are now allegedly doing – par­tic­u­larly when col­lud­ing with their US counterparts.

Also, MI5 and MI6 oper­ate out­side any real­ist­ic demo­crat­ic over­sight and con­trol. The remit of the intel­li­gence and secur­ity com­mit­tee in par­lia­ment only cov­ers the policy, admin­is­tra­tion and fin­ance of the spies. Since the com­mit­tee’s incep­tion in 1994 it has repeatedly failed to mean­ing­fully address more ser­i­ous ques­tions about the spies’ role. The spooks are effect­ively above the law, while at the same time pro­tec­ted by the dra­coni­an Offi­cial Secrets Act. This makes the abuses of the NPOIU seem almost quaint. So what to do? A good first step might be to have an informed dis­cus­sion about the real­ist­ic threats to the UK. The police and spies huddle behind the pro­tect­ive phrase “nation­al secur­ity”. But what does this mean?

Climate_camp_and_policeThe core idea should be safe­guard­ing the nation’s integ­rity. A group of well-mean­ing envir­on­ment­al pro­test­ers should not even be on the radar. And, no mat­ter how awful, the occa­sion­al ter­ror­ist attack is not an exist­en­tial threat to the fab­ric of the nation in the way of, say, the planned Nazi inva­sion in 1940. Nor is it even close to the sus­tained bomb­ing of gov­ern­ment, infra­struc­ture and mil­it­ary tar­gets by the Pro­vi­sion­al IRA in the 70s-90s.

Once we under­stand the real threats, we as a nation can dis­cuss the steps to take to pro­tect ourselves; what meas­ures should be taken and what liber­ties occa­sion­ally and leg­ally com­prom­ised, and what demo­crat­ic account­ab­il­ity exists to ensure that the secur­ity forces do not exceed their remit and work with­in the law.

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.….

Secrecy laws come out of the closet

Finally the true inten­tions behind the dra­coni­an Brit­ish law, the Offi­cial Secrets Act, and sim­il­ar espi­on­age-related laws in oth­er coun­tries such as the USA, have been laid bare.  All is revealed — these laws appar­ently have noth­ing what­so­ever to do with pro­tect­ing nation­al secur­ity and coun­ter­ing espi­on­age — their primary pur­pose is to stifle dis­sent and legit­im­ate cri­ti­cism of the state.

How can I tell?  Well, look at the reac­tion to the ongo­ing Wikileaks rev­el­a­tions, as opposed to today’s UK spy scan­dal involving the par­lia­ment­ary assist­ant of a hitherto unre­mark­able MP

WikileaksThe now-notori­ous Wikileaks site has been going since 2007 and, in this brief time, has shone a bright light on such nas­ties as Trafigura, the BNP, Sci­ento­logy, Cli­mateg­ate, Guantanamo, the Aus­trali­an inter­net black­list, Sarah Pal­in, and much more.

The site achieved world-wide notori­ety this year with four big stor­ies — start­ing with the har­row­ing film “Col­lat­er­al Murder”, which demon­strated clearly that the Pentagon had been lying to the dis­traught fam­il­ies of the vic­tims of this video-game nasty for years. 

Since then Wikileaks has clev­erly worked with selec­ted media oulets such as The Guard­i­an, The New York Times and Der Spiegel in Ger­many to give us the Afghan War logs and Iraq war files, which exposed endem­ic bru­tal­ity, tor­ture and war crimes (all in the name of spread­ing demo­cracy, of course), and cul­min­at­ing over the last week with the ongo­ing Cableg­ate expose.

The response?  Well the major­ity of the old media, par­tic­u­larly those that did­n’t share in the juicy scoops, has been in attack mode: con­demning whis­tleblow­ing; vil­i­fy­ing the char­ac­ter of Wikileaks spokes­per­son, Juli­an Assange; and glee­fully report­ing the wide­spread cyber­space crack­down (Amazon pulling the site, Payp­al stop­ping con­tri­bu­tions, the ongo­ing hack attacks). 

But this is just so much hot air — what about the real sub­stance of the dis­clos­ures?  The viol­ent hor­ror, war crimes, and gov­ern­ment lies?  Why is our so-called Fourth Estate not demand­ing a response to all this ter­rible evidence?

Julian_AssangeHow­ever, it is the reac­tion of the US polit­ic­al class that is most gob-smack­ingly shock­ing.  The half-wits call for Assange’s pro­sec­u­tion under the US Espi­on­age Act (even though he’s an Aus­trali­an); to have him executed, assas­sin­ated by drone attack, or unlaw­fully dis­ap­peared as an “unlaw­ful com­batant”; and make hys­ter­ic­al calls for Wikileaks to be placed on the US list of pro­scribed for­eign ter­ror­ist organ­isa­tions.  Daniel Ells­berg, the fam­ous Pentagon Papers whis­tleblower, fears for Assange’s life.

Well, you can always tell how effect­ive a whis­tleblower is by the response you engender when telling truth to power, and this is a pretty strik­ing vindication.

Of course, Juli­an Assange is not strictly speak­ing a whis­tleblower per se.  He is the next gen­er­a­tion — a highly-cap­able, high-tech con­duit, using his “hack­iv­ist” skills to out-pace and out-smart those who seek to con­ceal vital information.

As he said dur­ing a TED​.com inter­view last sum­mer, he strives to live by the ideal that to be a man is to be “cap­able and gen­er­ous, not to cre­ate vic­tims, but to nur­ture them…”.  And this is indeed the pro­tec­tion Wikileaks offers, an aven­ue of secure dis­clos­ure for people of con­science on the inside, without their hav­ing to go pub­lic to estab­lish the bona fides of what they are say­ing, with the res­ult­ing vic­tim­isa­tion, loss of career, liberty, and pos­sibly life.

Still, politi­cians seem unable to make the dis­tinc­tion — they are solely focused on loss of face, embar­rass­ment, and shor­ing up the wall of secrecy that allows them to get away with lies, tor­ture and war crimes.  I hope that com­mon sense will pre­vail and Assange will not become anoth­er sac­ri­fi­cial vic­tim on the altar of “nation­al security”.

Katia_ZSo why did I say at the start that the secrecy laws have come out of the closet?  Well, in the wake of all this recent media and polit­ic­al hys­teria about Wikileaks, this little espi­on­age gem appeared in the UK media today.   Essen­tially, the UK Home Sec­ret­ary is boot­ing out an alleged Rus­si­an spy, Ms Katia Zat­uliv­eter who, des­pite get­ting through secur­ity vet­ting (MI5, any­one?), was really an SVR agent  work­ing as the Par­lia­ment­ary assist­ant to Mike Han­cock MP — a man who hap­pens to have a spe­cial interest in Rus­sia and who serves on the UK’s Par­lia­ment­ary Defence Select Committee.

Now, in the old days such alleged activ­ity would mean an auto­mat­ic arrest and prob­able pro­sec­u­tion for espi­on­age under the Offi­cial Secrets Acts (1911 and 1989). If we go with what the old media has repor­ted, this would seem to be a clear-cut case.  Dur­ing the Cold War for­eign spies work­ing under dip­lo­mat­ic cov­er could be dis­creetly PNGed (the jar­gon for declar­ing a dip­lo­mat per­sona non grata).  How­ever, this young woman was work­ing in Par­lia­ment, there­fore can have no such dip­lo­mat­ic cov­er.  But deport­a­tion and the avoid­ance of embar­rass­ment seems to be the order of the day — as we saw also with the explu­sion of the Rus­si­an spy ring from the US last summer).

Which demon­strates with a start­ling clar­ity the real inten­tions behind the Brit­ish OSA and the Amer­ic­an Espi­on­age Act.  The full force of these laws will auto­mat­ic­ally be brought to bear against those expos­ing crime in high and secret places, pour enour­ager les autres,  but will rarely be used against real spies. 

Proof pos­it­ive, I would sug­gest, that these laws were draf­ted to pre­vent cri­ti­cism, dis­sent and whis­tleblow­ing, as I’ve writ­ten before, but not mean­ing­fully to pro­tect our nation­al secur­ity.  One can but hope that the Wikileaks débâcle acts as the long-over­due final nail in the OSA coffin.

Would it not be won­der­ful if our “esteemed” legis­lat­ors could learn from recent events, draw a col­lect­ive deep breath, and finally get to grips with those who pose a real threat to our nations — the people who lie to take us into illeg­al wars, and intel­li­gence officers involved in tor­ture, assas­sin­a­tion and espionage?

US Intelligence targets Wikileaks

WikileaksThe US gov­ern­ment has appar­ently been get­ting its knick­ers in a twist about the excel­lent Wikileaks web­site.  A report writ­ten in 2008 by US army counter-intel­li­gence ana­lys­ing the threat posed by this haven for whis­tleblowers has been leaked to, you’ve guessed it, the very sub­ject of the report.

Wikileaks was set up three years ago to provide a secure space for prin­cipled whis­tleblowers around the world to expose cor­rup­tion and crimes com­mit­ted by our gov­ern­ments, intel­li­gence agen­cies and mega-cor­por­a­tions.  The site takes great care to veri­fy the inform­a­tion it pub­lishes, adheres to the prin­ciple of expos­ing inform­a­tion very much in the pub­lic interest, and vig­or­ously pro­tects the identi­fy of its sources.

By doing so, Wikileaks plays a vital part in inform­ing cit­izens of what is being done (often illeg­ally) in their name.  This free flow of inform­a­tion is vital in a democracy.

Well, no gov­ern­ment likes a clued-up and crit­ic­al cit­izenry, nor does it like to have trans­par­ency and account­ab­il­ity imposed on it.  Which led to the report in question.

As I have writ­ten before ad nauseam, whis­tleblowers provide an essen­tial func­tion to the healthy work­ing of a demo­cracy.  The simplist­ic approach would be to say that if gov­ern­ments, spies and big cor­por­a­tions obeyed the law, there would be no need for whis­tleblowers.  How­ever, back in the real, post‑9/11 world, with its end­less, neb­u­lous “war on ter­ror”, illeg­al wars, tor­ture, extraordin­ary rendi­tion and Big Broth­er sur­veil­lance, we have nev­er had great­er need of them.

Rather than ensur­ing the highest stand­ards of leg­al­ity and prob­ity in pub­lic life, it is far sim­pler for the powers that be to demon­ise the whis­tleblower — a fig­ure who is now (accord­ing to the Exec­ut­ive Sum­mary of the report) appar­ently seen as the “insider threat”.  We are look­ing at a nas­cent McCarthy­ism here.  It echoes the increas­ing use by our gov­ern­ments of the term “domest­ic extrem­ists” when they are talk­ing about act­iv­ists and protesters.

There are laws to pro­tect whis­tleblowers in most areas of work now.  In the UK we have the Pub­lic Interest Dis­clos­ure Act (1998).  How­ever, gov­ern­ment, mil­it­ary, and espe­cially intel­li­gence pro­fes­sion­als are denied this pro­tec­tion, des­pite the fact that they are most often the very people to wit­ness the most hein­ous state abuses, crimes and cor­rup­tion.  If they try to do some­thing about this, they are also the people most likely to be pro­sec­uted and per­se­cuted for fol­low­ing their con­sciences, as I described in a talk at the CCC in Ber­lin a couple of years ago.

Ideally, such whis­tleblowers need a pro­tec­ted leg­al chan­nel through which to report crimes, with the con­fid­ence that these will be prop­erly invest­ig­ated and the per­pet­rat­ors held to account.  Fail­ing that, sites like Wikileaks offer an invalu­able resource.  As I said last sum­mer at the Hack­ing at Ran­dom fest­iv­al in NL, when I had the pleas­ure of shar­ing a stage with Wikileaks founder Juli­an Assange, I just wish that the organ­isa­tion had exis­ted a dec­ade earli­er to help with my own whis­tleblow­ing exploits.

The Offi­cial Secrets Act (1989) in the UK, is draf­ted to stifle whis­tleblowers rather than pro­tect real secrets.  Such laws are routinely used to cov­er up the mis­takes, embar­rass­ment and crimes of spies and gov­ern­ments, rather than to pro­tect nation­al secur­ity.  After all, even the spooks acknow­ledge that there are only three cat­egor­ies of intel­li­gence that abso­lutely require pro­tec­tion: sens­it­ive oper­a­tion­al tech­niques, agent iden­tit­ies and ongo­ing operations.

This US counter-intel­li­gence report is already 2 years old, and its strategy for dis­cred­it­ing Wikileaks (by expos­ing one of their sources pour encour­ager les autres) has, to date, mani­festly failed. Cred­it is due to the Wikileaks team in out-think­ing and tech­no­lo­gic­ally out­pa­cing the intel­li­gence com­munity, and is a ringing endorse­ment for the whole open source philosophy.

I’ve said this before, and I shall say it again: as our coun­tries evolve ever more into sur­veil­lance soci­et­ies, with big broth­er data­bases, CCTV, bio­met­ric data, police drones, vot­ing com­puters et al, geeks may be our best (and last?) defence against emer­ging Big Broth­er states.

Amuse Bouche

A debate is cur­rently under way in the (ex) Land of the Free about how much pro­tec­tion intel­li­gence whis­tleblowers should be accor­ded under the law.

Yes, the coun­try that has brought the world the “war on ter­ror”, Guantanamo Bay, and the Pat­ri­ot Act, is hav­ing a mor­al spasm about how to best pro­tect those who wit­ness high crimes and mis­de­mean­ors inside the charmed circle of secrecy and intelligence. 

And about time too, fol­low­ing the mess of rev­el­a­tions about spy com­pli­city in tor­ture cur­rently emer­ging on both sides of the pond.

Inter­est­ingly, intel­li­gence offi­cials in the US already have a smidgeon more lee­way than their UK coun­ter­parts.  In the US, if you wit­ness a crime com­mit­ted by spies, you have to take your con­cerns to the head of the agency, and then you can go to Con­gress.  In the UK, the only per­son you can leg­ally report crime to is the head of the agency involved, so guess how many suc­cess­ful com­plaints are made?  Even tak­ing your proven and legit­im­ate con­cerns to your elec­ted UK rep­res­ent­at­ives is a crime under the OSA.

Spooks in the UK now have access to an “eth­ic­al coun­sel­lor”, who has reportedly been vis­ited a grand total of 12 times by intel­li­gence officers since 2006.  But this per­son has no power to invest­ig­ate alleg­a­tions of crime, and a vis­it guar­an­tees a career-block­ing black mark on your record of ser­vice: ie if you are the sort of per­son to worry your head with quaint ideas like eth­ics and mor­al­ity you are, at best, not a team play­er and, worse, a pos­sible secur­ity risk. 

WhistleThis is surely cul­tur­ally unsus­tain­able in a com­munity of people who gen­er­ally sign up to pro­tect the cit­izens of the coun­try and want to make a pos­it­ive dif­fer­ence by work­ing with­in the law?  Those who have con­cerns will resign, at the very least, and those who like to “just fol­low orders” will float to the top.  As one of the lead­ing pro­ponents for great­er whis­tleblower pro­tec­tion in the USA states in the linked article:

The code of loy­alty to the chain of com­mand is the primary value at those insti­tu­tions, and they set the stand­ard for intens­ity of retaliation.”

Some enlightened US politi­cians appear to be aware that intel­li­gence whis­tleblowers require pro­tec­tion just as all oth­er employ­ees receive under the law:  per­haps more so, as the nature of their work may well expose them to the most hein­ous crimes ima­gin­able.  There is also an argu­ment for put­ting prop­er chan­nels in place to ensure that whis­tleblowers don’t feel their only option is to risk going to the press.  Effect­ive chan­nels for blow­ing the whistle and invest­ig­at­ing crime can actu­ally pro­tect nation­al secur­ity rather than com­prom­ise it.

The nay-say­ers, of course, want to keep everything secret — after all, the status quo is cur­rently work­ing so well in uphold­ing demo­crat­ic val­ues across the globe.  Crit­ics of the new legis­la­tion talk of “dis­gruntled employ­ees .… glee­fully” spill­ing the beans.  Why is this hoary old line always dragged out in this type of dis­cus­sion?  Why are whis­tleblowers always described in this way, rather than called prin­cipled, brave or ethical?

Blanket secrecy works against the real interests of our coun­tries.  Mis­takes can be covered up, group-think ensures that crimes con­tin­ue, and any­one offer­ing con­struct­ive cri­ti­cism is labelled as a risky trouble­maker — no doubt a “dis­gruntled” one at that.

Of course, cer­tain areas of intel­li­gence work need to be pro­tec­ted: cur­rent oper­a­tion­al details (as ex-Met Assist­ant Com­mis­sion­er, Bob Quick has dis­covered), agent iden­tit­ies, and sens­it­ive tech­niques.  But the life blood of a healthy demo­cracy depends on open debate, vent­il­a­tion of prob­lems, and agreed solu­tions.  Informed and par­ti­cip­at­ory cit­izens need to know what is being done in their name.

Agent Names Lost

So the good times keep on rolling for the spook com­munity in the UK.  An officer of the Ser­i­ous Organ­ised Crime Agency (SOCA) appar­ently lost top secret inform­a­tion such as the names of under­cov­er agents while trav­el­ling in Ecuador.

LanderSOCA is a rel­at­ively new agency set up in 2004 to police organ­ised crime, par­tic­u­larly that revolving around the illeg­al drug trade.  The agency has the mis­for­tune to have as Chair­man Steph­en Lander, erstwhile boss of MI5; a man whose man­age­ment style was known as “Stalinesque”. 

Even before this latest blun­der, con­cerns had been raised by SOCA staff about inef­fect­ive and top-heavy man­age­ment (shades of MI5 in the 1990s)and recent ques­tions have been asked about wheth­er the agency was pro­du­cing mean­ing­ful res­ults, as the price of illi­cit drugs has plummeted on UK streets, indic­at­ing a glut of recent imports. 

This latest blun­der will hardly have reas­sured min­is­ters.  Reportedly, the hap­less SOCA officer lost a USB stick con­tain­ing the names of under­cov­er agents involved in the drug war in Ecuador, as well as inform­a­tion relat­ing to 5 years’ worth of invest­ig­a­tions.   The blun­der has reportedly jeop­ard­ised oper­a­tions that have cost in the region of £100 million.

Agent iden­tit­ies are, rightly, the most pro­tec­ted of secret inform­a­tion.  This is an unfor­giv­able gaff, and yet the officer is appar­ently only facing “dis­cip­lin­ary charges”. 

So, if you are a whis­tleblower expos­ing hein­ous spy crimes, you are put on tri­al and sent to pris­on, even if the tri­al judge acknow­ledges that no lives were ever put at risk through your dis­clos­ures.  How­ever, if you care­lessly leave top secret agent inform­a­tion lying around in hos­tile ter­rit­ory, you don’t even get the sack, let alone face pro­sec­u­tion under the Offi­cial Secrets Act.

I would sug­gest that the next intel­li­gence whis­tleblower to emerge from the shad­ows should simply claim to have dropped a USB stick out­side the offices of a nation­al news­pa­per.  A rap over the knuckles will then be the worst that they face! 

Deja Vu

I had a strong sense of déjà vu today, when I read about the woes of Mrs Green, the bar­ris­ter wife of Tory MP Dami­en Green who was arres­ted last Novem­ber for allegedly encour­aging gov­ern­ment inform­a­tion leaks.

Mr Green was arres­ted under an obscure and antique piece of legis­la­tion for “con­spir­ing to com­mit mis­con­duct in a pub­lic office and aid­ing and abet­ting, coun­selling or pro­cur­ing mis­con­duct in a pub­lic office”.  This, des­pite the fact that civil ser­vice man­dar­ins had per­suaded the Met­ro­pol­it­an Police Spe­cial Branch (MPSB) to invest­ig­ate him because he posed a “ser­i­ous threat to nation­al secur­ity”.  The case has now been dropped and reports have now shown that these civil ser­vants sig­ni­fic­antly over­stated the case to spur the police into action.

In such a case the obvi­ous step would have been for the Met to have invoked the dra­coni­an 1989 Offi­cial Secrets Act.  Cer­tainly their heavy-handed response seemed to indic­ate that this was how they were view­ing the grav­ity of the case, even if they were des­per­ately try­ing to avoid the attend­ant scan­dal such a step would have pro­voked.    Spe­cial Branch officers in the Counter-Ter­ror­ism squad are not nor­mally sent to rip apart people’s houses for minor offences.

Which takes me back to the inter­view with the out­raged Mrs Green.  A bar­ris­ter spe­cial­ising in highly con­fid­en­tial child abuse cases, she inno­cently let the secret police enter her home, only to watch in dis­be­lief as they ripped it apart in what sounds to me like a counter-ter­ror­ism style search.  They, of course, found noth­ing rel­ev­ant to their invest­ig­a­tion, but scoured the com­puters, removed the bed­sheets, took away love let­ters between the Greens, and even rifled through the chil­dren’s books.

I sup­pose I was more for­tu­nate than the hap­less Mrs Green.  When the secret police ripped apart my home in the same way back in 1997, I was in Europe with my ex-part­ner and col­league, MI5 whis­tleblower Dav­id Shayler.  After we had exposed the fact that MI5 was shame­lessly break­ing the law, the MPSB had obtained a war­rant that allowed them to search our home for mater­i­al relat­ing to our employ­ment in MI5.  As I was away, they jack­hammered the front door in, and then spent two days rip­ping through the flat in Pimlico.  It had been my home for 4 years.

Nat­ur­ally, the police found noth­ing rel­ev­ant.  That did not deter them from search­ing the place for two days, and tak­ing away bags of pos­ses­sions, includ­ing some of my under­wear, the bed­sheets, pho­to­graphs, and our love let­ters.  They also smashed up chairs and lamps, ripped the bath apart, pulled up the car­pets, and scattered my remain­ing under­wear across the bed­room floor. It looked like they had been play­ing with it.

I saw all this when I returned home a month later, and I felt viol­ated.  I know this is a com­mon reac­tion when one’s home is burgled; but in this case my home had been despoiled by the police, not by crim­in­als.  No doubt, some would say that we, and the Greens, deserved this treat­ment.  After all, we had the temer­ity to expose mal­prac­tice, lies, and crime with­in gov­ern­ment circles.  We, of course, would argue that we had acted for the pub­lic good.

Whatever.  I still think that a counter-ter­ror­ism style search of a whis­tleblower­’s house is over the top and delib­er­ately intimidatory.

The police may have ran­sacked my home, but I was nev­er charged with any offence.  Nor did I ever did get my under­wear or love let­ters back.….

Quick to Miss a Trick

Bob_QuickFormer Assist­ant Com­mis­sion­er of Spe­cial Oper­a­tions at the Met­ro­pol­it­an Police, Bob Quick, has hit the head­lines a couple of times in the last few months — for all the wrong reasons. 

Last Novem­ber he author­ised the arrest of Tory MP Dami­en Green for allegedly encour­aging leaks of sens­it­ive gov­ern­ment inform­a­tion.  This had the knock-on bene­fit of wak­ing MPs up to the fact that we are now liv­ing in a de facto police state.  Well, I sup­pose that must have been a wel­come dis­trac­tion for them.  It must be so dull merely to spend your time devis­ing new and ingeni­ous ways of fid­dling your par­lia­ment­ary expenses. 

This week, Quick was pho­to­graphed enter­ing Down­ing Street with highly clas­si­fied doc­u­ments under his arm about a sens­it­ive UK ter­ror­ist invest­ig­a­tion, which were clearly vis­ible to wait­ing pho­to­graph­ers.  The clearly vis­ible “Secret” brief­ing doc­u­ment detailed an MI5-led oper­a­tion, code­named Path­way, and bounced the counter-ter­ror­ism agen­cies into mak­ing pre­ma­ture arrests of the sus­pects, many of them young Pakistanis in the UK on stu­dent visas.

Out­rage fol­lowed this massive secur­ity lapse.  What on earth was the man doing, openly car­ry­ing secret doc­u­ments?  Pro­tect­ive rules dic­tate that such papers are not allowed out­side HQ unless signed out and in a secur­ity briefcase.  The vol­un­tary press cen­sor­ship com­mit­tee, the Defence, Press and Broad­cast­ing Advis­ory Com­mit­tee, has slapped a ‘D’ Notice all over the story.  Quick has, of course, resigned.  Reportedly, he may even (gasp) face dis­cip­lin­ary pro­ceed­ings with­in the Met.

Is it just me, or people miss­ing a trick here?  This man has dis­closed a highly clas­si­fied intel­li­gence doc­u­ment without per­mis­sion.  In addi­tion, this doc­u­ment con­tained inform­a­tion about an ongo­ing oper­a­tion AND the names of seni­or intel­li­gence officers — accord­ing to MI5 lore two of the most dam­aging types of inform­a­tion that could pos­sibly be dis­closed.  So, why is Quick not facing pro­sec­u­tion under the dra­coni­an 1989 Offi­cial Secrets Act?  He clearly falls under Sec­tion 1(1) of the Act as a noti­fied per­son if he is hand­ling Secret documents:

1(1) A per­son who is or has been—

(a) a mem­ber of the secur­ity and intel­li­gence ser­vices; or

(b) a per­son noti­fied that he is sub­ject to the pro­vi­sions of this subsection,

is guilty of an offence if without law­ful author­ity he dis­closes any inform­a­tion, doc­u­ment or oth­er art­icle relat­ing to secur­ity or intel­li­gence which is or has been in his pos­ses­sion by vir­tue of his pos­i­tion as a mem­ber of any of those ser­vices or in the course of his work while the noti­fic­a­tion is or was in force.

Under these pro­vi­sions, there is no real defence under law.  Leg­al pre­ced­ent in recent OSA tri­als has clearly estab­lished that the reas­on for an unau­thor­ised dis­clos­ure of secrets is irrel­ev­ant.  (The the­or­et­ic­al and untested sub­sequent defence of “neces­sity” has no bear­ing on this par­tic­u­lar case.)  Wheth­er the breach occurs due to prin­cipled whis­tleblow­ing or a mis­take does­n’t mat­ter: the clear bright line against dis­clos­ure has been crossed and pro­sec­u­tion inex­or­ably follows.

Except if you have suf­fi­ciently seni­or­ity, it appears.….

MPs object to police state

Dgreen An inter­est­ing polit­ic­al row has erup­ted this week in the UK about the arrest of the oppos­i­tion Tory MP, Dami­en Green, who is also the Shad­ow Min­is­ter for Immig­ra­tion.  He was arres­ted on Thursday for alleged breaches of an obscure com­mon law  “aid­ing and abet­ting mis­con­duct in pub­lic office”.

Reports indic­ate that the Met­ro­pol­it­an Police Spe­cial Branch, or as the news­pa­pers would have it the “anti-ter­ror­ism branch” was called in to invest­ig­ate leaks from the Home Office about immig­ra­tion policy, that Green was using these leaks to score points off the gov­ern­ment, and the Home Sec­ret­ary Jac­qui Smith in particular.

Nat­ur­ally, MPs from both sides of the House have been froth­ing at the mouth:  how dare Plod embar­rass an MP by arrest­ing him without warn­ing and by con­duct­ing co-ordin­ated searches of his homes and offices in both Kent and Lon­don?  News­pa­pers, par­tic­u­larly on the right of the polit­ic­al spec­trum, have been full of head­lines say­ing that this is proof that we are liv­ing in a police state.

While I have some sym­pathy for the belea­guered Mr Green, hav­ing also been hauled off by the Met Spe­cial Branch and quizzed for hours for dis­cuss­ing sens­it­ive inform­a­tion that was very much in the pub­lic interest, as well as see­ing my home ripped apart in a co-ordin­ated counter-ter­ror­ism style raid and seen friends arres­ted in co-ordin­ated dawn raids, I am still aghast at the hypo­crisy of both the politi­cians’ and medi­a’s reaction.

Many of us are already all to pain­fully aware that we live in a de facto police state.  Under the notori­ous Sec­tion 44 of the 2000 Ter­ror­ism Act, we can all be stopped and searched for no reas­on — and can even be arres­ted purely so that a bobby on the beat can ascer­tain our iden­tity.  Notices to this effect are now help­fully pinned up out­side most tube sta­tions in Lon­don.  Thou­sands of people are sub­ject to this across the UK every year on the streets of Britain.

But oth­er points rather leap to my atten­tion from the cov­er­age of this case.  If MPs don’t like the heavy-handed use and abuse of police powers, why did they pass these laws in the first place?  Did they not think through the implic­a­tions?  Or do they think that, as MPs, they are some­how above the laws of this land?

Plus, seni­or MPs are arguing that the use of leaks from dis­gruntled civil ser­vants is a time-hon­oured way for HM Oppos­i­tion in Par­lia­ment to hold the gov­ern­ment to account.  Well, that might be good for the MPs’ par­lia­ment­ary careers, but what of the hap­less and fre­quently brave souls with­in the Civil Ser­vice who face 2 years in pris­on for such leaks if they are con­victed of a breach of the 1989 Offi­cial Secrets Act?  And, of course, there is no leg­al defense under the OSA of hav­ing acted “in the pub­lic interest” — the very argu­ment that MPs are using to jus­ti­fy Green’s expos­ure of Home Office cov­er-ups and incompetence. 

As far as I can see, there have been no com­ments from either journ­al­ists or MPs about the fate of the source.    The most I could find was the fol­low­ing in the Daily Tele­graph:

An alleged “whis­tleblower”, thought to be a male Home Office offi­cial was arres­ted 10 days ago.”

Either that means that journ­al­ists and MPs could­n’t give a toss about the fate of this per­son — after all, an MP’s career is far more import­ant — or that any report­ing of the arrest of the whis­tleblower has been injunc­ted in the media to the nth degree.  This would be even more troub­ling, as someone can just be “dis­ap­peared” into a Kafka-esque leg­al nightmare. 

 

August 2007 Mail on Sunday Article

Dav­id Shayler­’s former part­ner reveals: How the bul­ly­ing State crushed him
By ANNIE MACHON

Link to daily mail ori­gin­al — link to Daily Mail com­ments

Ten years ago this month former MI5 officer Dav­id Shayler made shock­ing rev­el­a­tions in this news­pa­per about how Bri­tain’s spies were unable to deal with the grow­ing threat of glob­al terrorism.

He dis­closed how MI5’s pecu­li­ar obses­sion with bur­eau­cracy and secrecy pre­ven­ted cru­cial inform­a­tion being used to stop bomb­ings. And he told how insuf­fi­cient agents and inept decision-mak­ing meant that ter­ror­ist groups were not prop­erly monitored.

None of his ori­gin­al dis­clos­ures was shown to be wrong. Indeed, in 2005 the bomb­ings in Lon­don proved the whis­tleblower cor­rect: MI5 was not equipped to counter ter­ror on our streets.

The Gov­ern­ment response to Dav­id’s dis­clos­ures was to place a gag­ging order on The Mail on Sunday and launch a six-year cam­paign to dis­cred­it and per­se­cute Shayler. Alastair Camp­bell threatened to ‘send in the heav­ies’ and the whis­tleblower was forced into exile abroad, jailed twice and sued for dam­ages; his friends and fam­ily were har­assed and some arrested.

He faced a bleak, uncer­tain future and for many years he was under intense stress and pres­sure, often isol­ated and always under sur­veil­lance. I had a ring­side seat for the ‘Get Shayler’ oper­a­tion because I was an MI5 officer at the same time (1991−96) and also his girl­friend and co-cam­paign­er until last year when I ended my rela­tion­ship with a broken man.

I wit­nessed first-hand the extraordin­ary psy­cho­lo­gic­al, phys­ic­al and emo­tion­al bur­den of being a whis­tleblower when the full power of the secret State is launched against you. A dec­ade on the res­ults of that per­ni­cious cam­paign became clear when I heard that Dav­id had pro­claimed him­self as “The Mes­si­ah” and “God” and could pre­dict the weath­er. I was saddened but not shocked. The story of Dav­id Shayler is not just one of a whis­tleblower but also an indict­ment of the lack of demo­cracy and account­ab­il­ity in Britain.

I first met Dav­id when we were both work­ing in F2, the counter-sub­ver­sion sec­tion of MI5, where we were repeatedly reas­sured that MI5 had to work with­in the law. We were young and keen to help pro­tect our coun­try. I noticed Dav­id imme­di­ately, as he was very bright, and always asked the dif­fi­cult ques­tions. Over a peri­od of a year we became friends, and then we fell in love.

In the run-up to the 1992 Gen­er­al Elec­tion we were involved in assess­ing any par­lia­ment­ary can­did­ate and poten­tial MP. This meant that they all had their names cross-ref­er­enced with MI5’s data­base. If any can­did­ates had a file, this was reviewed. We saw files on most of the top politi­cians of the past dec­ade, from Tony Blair down, some­thing that gave us concerns.

We then both moved to G Branch, the inter­na­tion­al counter-ter­ror­ist divi­sion, with Dav­id head­ing the Liby­an sec­tion. It was here that he wit­nessed a cata­logue of errors and crimes: the illeg­al phone-tap­ping of a prom­in­ent Guard­i­an journ­al­ist, the fail­ure of MI5 to pre­vent the bomb­ing of the Israeli embassy in Lon­don in July 1994, which res­ul­ted in the wrong­ful con­vic­tion of two inno­cent Palestini­ans, and the attemp­ted assas­sin­a­tion of Col­on­el Gad­dafi of Libya.

Dav­id raised this with his bosses at the time but they showed no interest. So we resigned from MI5 after decid­ing to go pub­lic to force an inquiry into the Gad­dafi plot.

After The Mail on Sunday rev­el­a­tions we decamped to France while Dav­id tried to get the Gov­ern­ment to take his evid­ence and invest­ig­ate MI5’s crimes, some­thing, to this day, it has refused to do. Rather than address­ing the prob­lem, the Intel­li­gence Ser­vices tried to shoot the mes­sen­ger. They planted stor­ies claim­ing Dav­id was a fan­tas­ist, over­looked for pro­mo­tion, and was too juni­or to know what he was talk­ing about. These are clas­sic tac­tics used against whis­tleblowers and were wheeled out again when Dr Dav­id Kelly took his life.

We even­tu­ally returned home in 2000, by which time Dav­id felt isol­ated and angry. He began to dis­trust friends and thought that many of them might be report­ing on him. He was con­vinced he was con­stantly fol­lowed and began to take pho­to­graphs of people in the street. When the tri­al star­ted, and with Dav­id effect­ively gagged, the jury had no choice but to convict.

He received a six-month sen­tence but the judg­ment exon­er­ated him of pla­cing agents’ lives at risk, con­ced­ing that he had spoken out in what he thought to be the pub­lic interest. Dav­id had blown the whistle with the best of motives. He had exposed hein­ous State crimes up to and includ­ing murder, yet he was the one in pris­on with his repu­ta­tion in tat­ters. His release from jail saw a changed man. Dav­id was full of anger, frus­tra­tion and bit­ter­ness and became depressed and with­drawn. He was drawn to the spir­itu­al teach­ings of kab­ba­l­ah, and became obsessed with the sub­ject instead of focus­ing on what we should do to sur­vive. Last sum­mer, I went away for a week­end. When I returned, Dav­id had shaved off all his hair and his eye­brows as part of his spir­itu­al evol­u­tion. He knew that I had always loved his long, thick hair, so it felt like a per­son­al slap in the face. He was in trouble. He was quick to anger if any­one ques­tioned him. He became obsess­ive about little details, espoused wacky the­or­ies and shunned his fam­ily and old friends. His para­noia also escal­ated. His exper­i­ence of being houn­ded and vil­i­fied for a dec­ade had left a deep per­se­cu­tion com­plex. Even­tu­ally the strain was too much and I ended the relationship.

It was dif­fi­cult as we had shared so much over the 14 years we had been togeth­er, but it felt that we were no longer a team – Dav­id was focus­ing only on eso­ter­ic issues. Look­ing back, I am still proud of what we did. I believe that if you wit­ness the crimes that we did, you have to take action. But the price for tak­ing that stand against a bully State can be high. It is tra­gic to see an hon­our­able and brave man crushed in this way. The Brit­ish Estab­lish­ment is ruth­less in pro­tect­ing its own interests rather than those of our coun­try. Today Dav­id Shayler is liv­ing testi­mony to that.

Poor Bloody Infantry

There is an ongo­ing cam­paign to save Bletch­ley Park for the nation, in the teeth of gov­ern­ment oppos­i­tion. As his­tor­ic Brit­ish monu­ments go, the ques­tion of wheth­er to pre­serve it for pos­ter­ity should be a no-brain­er. Bletch­ley is not only where Hitler­’s Enigma code machine was decryp­ted, along with many oth­er sys­tems, which argu­ably gave the Allies the intel­li­gence advant­age that led to vic­tory in World War 2, it is also where the first digit­al elec­tron­ic com­puters, code­named Colos­sus, were oper­ated. Two land­mark events of the 20th century.

Recently The Times repor­ted on this cam­paign. The art­icle also the dwells at some length on how long Bletch­ley’s secrets were kept by the 10,000 people who worked there dur­ing the war. Although this inform­a­tion was declas­si­fied after 30 years, the habit of secrecy was so deeply ingrained that many former employ­ees nev­er breathed a word. The art­icle laments the passing of this habit of dis­cre­tion from Brit­ish life, stat­ing that politi­cians and seni­or intel­li­gence officers now appear to view the pos­ses­sion of insider know­ledge as a good pen­sion fund when they come to write their memoirs.

Over the last dec­ade we have see a myri­ad of books emer­ging for the upper ech­el­ons of gov­ern­ment and intel­li­gence in the UK: Alastair Camp­bell, Robin Cook, Wash­ing­ton Ambas­sad­or Sir Chris­toph­er Mey­er, ex-MI5 chief Dame Stella Rim­ing­ton. Even Tony Blair has appar­ently signed a sev­en fig­ure deal for his memoirs.

All these books have a num­ber of char­ac­ter­ist­ics in com­mon: they are lengthy, but say little of rel­ev­ance about the burn­ing issues of the day; they appear to have been writ­ten for profit and not in the pub­lic interest; and not one of these writers has ever even been arres­ted under the Offi­cial Secrets Act, even when there is clear prima facie evid­ence of a breach.

Yet these dili­gent authors are the very people who are the first to use the OSA to stifle legit­im­ate dis­clos­ure of crime, cor­rup­tion and incom­pet­ence in the highest levels of gov­ern­ment and intel­li­gence by real whis­tleblowers, who risk their careers and their free­dom. The hypo­crisy is breathtaking.

But was the old-fash­ioned, blanket dis­cre­tion, vaunted by The Times, really such a good thing? The code of “loose talk costs lives” may have made sense dur­ing the Second World War, when this nation was fight­ing for its life. The work at Bletch­ley was mani­festly a suc­cess, obvi­at­ing any need to blow the whistle. But who can tell how these pat­ri­ot­ic men and women would have reacted had they wit­nessed crimes or incom­pet­ence that dam­aged our nation’s secur­ity, led to the deaths of our sol­diers, or even pos­sible defeat?

Also, was the 30-year non-dis­clos­ure rule around the work of Bletch­ley really neces­sary? After all, the war had been won, so how could dis­clos­ure bene­fit the enemy? This unthink­ing applic­a­tion of the stand­ard rules cost the UK dearly. In fact, it would be accur­ate to say that it severely dam­aged the UK’s eco­nom­ic well­being – some­thing the OSA is sup­posed to protect.

In 1943 the Brit­ish were the world lead­ers in digit­al elec­tron­ic com­put­ing. The dra­coni­an Offi­cial Secrets Act pre­cluded the devel­op­ment and com­mer­cial use of this know­ledge in Bri­tain after the war. In fact, mind­bog­glingly, the Colos­sus com­puters were dis­mantled and the research destroyed.

There were no sim­il­ar pro­vi­sions affect­ing the Amer­ic­an cryp­to­graph­ers who had been sta­tioned at Bletch­ley. Con­sequently, after the war they enthu­si­ast­ic­ally applied Brit­ish research and tech­no­logy to devel­op the US com­puter research pro­gramme and even­tu­ally the mar­ket, pav­ing the way to the suc­cess of Sil­ic­on Val­ley and the dom­in­a­tion of the world’s IT mar­kets for dec­ades. What price the famed Brit­ish stiff upper lip and dis­cre­tion then?

Of course, there need to be leg­al pro­vi­sions to pro­tect real secrets that could affect Bri­tain’s nation­al secur­ity. How­ever, this should be pro­por­tion­ate and bal­anced, and should not pre­vent the devel­op­ment of new research and tech­no­lo­gies, the expos­ure in the pub­lic interest of crime, and cer­tainly not the fact our coun­try was taken into war on the basis of lies.

Real­ist­ic­ally, how­ever, in the age of the inter­net such leg­al pro­vi­sions are increas­ingly mean­ing­less. Des­pite this, more and more coun­tries appear to be adopt­ing Bri­tain’s mod­el of anti­quated and dra­coni­an secrecy legislation.

We live in a coun­try that crim­in­al­ises any dis­clos­ure of sens­it­ive inform­a­tion – unless it comes in the form of mem­oirs from seni­or politi­cians, White­hall offi­cials or spooks of course. As always, there is one rule for the gen­er­als and one for the poor bloody infantry.

For the good of our coun­try, we need to rethink this legislation.

Save Our Free Speech

The Guard­i­an today repor­ted that the United Nations Com­mit­tee on Human Rights had issued a damning indict­ment of the Brit­ish gov­ern­ment’s use of legis­la­tion to sup­press a right that is fun­da­ment­al to all func­tion­ing demo­cra­cies: free­dom of expression.

This is not news to me. But it’s inter­est­ing that free­dom of expres­sion is now being cur­tailed in so many var­ied, inter­est­ing and ima­gin­at­ive ways: libel laws, ter­ror­ism laws and offi­cial secrecy. That’s quite an arsenal.

Bri­tain is now infam­ous for being the “libel cap­it­al” of the world. Wealthy indi­vidu­als can use our courts to sup­press pub­lic­a­tion of crit­ic­al books and art­icles any­where in the world, if they can prove that the book has been sold in the UK – even if it’s just one, second-hand copy on Amazon. The magazine, Private Eye, has been com­ment­ing on this extens­ively over the last year.

Then, under the slew of new counter-ter­ror­ism legis­la­tion that the Labour gov­ern­ment has intro­duced since 2001, it is now an offence to say any­thing that might “encour­age” ter­ror­ism. That defin­i­tion is so broad that, say, you or I made an inno­cent com­ment about the Palestini­an or Iraqi situ­ation, and this could be mis­con­strued by anoth­er per­son as encour­aging them to viol­ence, this could be assessed sub­ject­ively as a crim­in­al offence by the pro­sec­ut­ing author­it­ies. This is third party thought-crime.

These sort of laws have a neg­at­ive impact on free speech, as pub­lish­ers, edit­ors and journ­al­ists begin to self-cen­sor rather than run informed risks for the pub­lic good.

But it’s the third area of law that res­on­ates most with me, for obvi­ous reas­ons: the 1989 Offi­cial Secrets Act, which crim­in­al­ises any unau­thor­ised dis­clos­ure by serving or former intel­li­gence officers, noti­fied per­sons, and oth­er crown ser­vants and offi­cials. These people are the most likely to wit­ness high crimes and mis­de­mean­ors on the part of gov­ern­ment, police and the intel­li­gence ser­vices, and yet they are the most crim­in­al­ised in this coun­try for speak­ing out. Whis­tleblowers in oth­er areas of work are spe­cific­ally pro­tec­ted by the law under the Pub­lic Interest Dis­clos­ure Act (1998).

How did this hap­pen? Ever since the 1911 Offi­cial Secrets Act came into force, there has been legis­la­tion to pro­tect this nation’s genu­ine secrets against the actions of trait­ors. Under this law, crown ser­vants face 14 years in pris­on if they betray inform­a­tion to hos­tile powers. Of course we need to pro­tect genu­ine secrets, and this is cer­tainly safe­guard enough.

The change in this law was spe­cific­ally designed to gag genu­ine whis­tleblowers in sens­it­ive areas, not pro­tect nation­al secur­ity. This came about in the 1980s after the notori­ous failed pro­sec­u­tion of Min­istry of Defense civil ser­vant, Clive Pont­ing. In 1984 he blew the whistle on the fact the Brit­ish gov­ern­ment knew that the Argen­tini­an war­ship, the Gen­er­al Bel­grano, was sail­ing away from the exclu­sion zone dur­ing the Falk­lands War in 1982. Des­pite this, the order was still giv­en to attack it, and many were killed. Pont­ing was rightly out­raged by this, and went pub­lic. His actions were mani­festly in the pub­lic interest, and this was pre­cisely the suc­cess­ful defense he ran in court. Furi­ous, the Con­ser­vat­ive gov­ern­ment of the time re-wrote the secrecy laws, remov­ing the pub­lic interest defense to deter such prin­cipled whis­tleblowers in the future. And this is the cur­rent Offi­cial Secrets Act cri­ti­cised so strongly by the UN.

Inter­est­ingly, at the time the Labour party strongly opposed this change, rightly think­ing that this would cur­tail cru­cial inform­a­tion reach­ing the pub­lic domain. At this point, of course, many of them cor­rectly sus­pec­ted that they were on the receiv­ing end of illeg­al invest­ig­a­tions by MI5.

The roll call of Labour MPs who voted against the pro­posed Act as it passed through Par­lia­ment in 1988 includes such luminar­ies as Tony Blair, Jack Straw and the former Attor­ney Gen­er­al John Mor­ris. All these people went on to use the 1989 OSA to threaten and pro­sec­ute the intel­li­gence whis­tleblowers of the last decade.

The blanket ban on free­dom of expres­sion for intel­li­gence per­son­nel appears to be illeg­al under the terms of the European Con­ven­tion of Human Rights. Sure, Art­icle 10(2) does give nations the lim­ited right to cur­tail free­dom of expres­sion in a pro­por­tion­ate way to pro­tect nation­al secur­ity. How­ever, the term “nation­al secur­ity” has nev­er been defined for leg­al pur­poses in this coun­try and is used as a catch-all phrase to pre­vent dis­clos­ure of any­thing embar­rass­ing to the gov­ern­ment and the intel­li­gence agen­cies. Plus, dur­ing these cases, law­yers and judges have con­sist­ently con­fused the notion of the nation­al interest with nation­al secur­ity – two very dif­fer­ent beasts. And free­dom of expres­sion can­not be leg­ally cur­tailed under the Con­ven­tion merely for reas­ons of “the nation­al interest”.

So I was heartened to read the UN’s ver­dict on this leg­al mess: “Powers under the Offi­cial Secrets Act have been “exer­cised to frus­trate former employ­ees of the crown from bring­ing into the pub­lic domain issues of genu­ine pub­lic interest, and can be exer­cised to pre­vent the media from pub­lish­ing such matters”.”

Let’s hope this leads to the rein­state­ment of the pub­lic interest defence at the very least. Dur­ing this time of the unend­ing “war on ter­ror”, gov­ern­ments lying to take us into illeg­al wars, and the use of tor­ture and intern­ment, whis­tleblowers play an import­ant role in uphold­ing and defend­ing our demo­crat­ic val­ues. We need to pro­tect them, not pro­sec­ute them.

Fig Leaf to the Spies

The lack of any mean­ing­ful over­sight of the UK’s intel­li­gence com­munity was high­lighted again last week, when The Daily Mail repor­ted that a cru­cial fax was lost in the run-up to the 7/7 bomb­ings in Lon­don in 2005.

There has yet to be an offi­cial enquiry into the worst ter­ror­ist atro­city on the UK main­land, des­pite the call for one from trau­mat­ised fam­il­ies and sur­viv­ors and the legit­im­ate con­cerns of the Brit­ish pub­lic. To date, we have had to make do with an “offi­cial nar­rat­ive” writ­ten by a face­less bur­eau­crat and pub­lished in May 2006. As soon as it was pub­lished, the then Home Sec­ret­ary, John Reid, had to cor­rect egre­gious fac­tu­al errors when present­ing it to Parliament.

The Intel­li­gence and Secur­ity Com­mit­tee (ISC) also did a shoddy first job, when it cleared the secur­ity forces of all wrong-doing in its ini­tial report pub­lished at the same time. It claimed a lack of resources had hampered MI5’s counter-ter­ror­ism efforts.

How­ever, fol­low­ing a use­ful leak, it emerged that MI5 had not only been aware of at least two of the alleged bombers before the attack, it had been con­cerned enough to send a fax up to West York­shire Police Spe­cial Branch ask­ing them to invest­ig­ate Mohammed Sidique Khan and Shehz­ad Tan­weer. This fax was nev­er acted upon.

So the ISC has been forced to pro­duce anoth­er report, this time appar­ently admit­ting that, yes, there had been intel­li­gence fail­ures, most not­ably the lost fax. West York­shire SB should have acted on it. But the intel­li­gence officer in MI5 respons­ible for this invest­ig­a­tion should have chased it up when no response was forthcoming.

This second ISC report, which has been sit­ting on the Prime Minister’s desk for weeks already, is said to be “dev­ast­at­ing”. How­ever, I’m will­ing to bet that if/when it sees the light of day, it will be any­thing but.

The ISC is at best an over­sight fig leaf. It was formed in 1994, when MI6 and GCHQ were put on a stat­utory foot­ing for the first time with the Intel­li­gence Ser­vices Act. At the time the press wel­comed this as a great step for­ward towards demo­crat­ic account­ab­il­ity for the intel­li­gence com­munity. Well, it could not have been worse than the pre­vi­ous set-up, when MI5, MI6 and GCHQ did not offi­cially exist. They were not required to obey the laws of the land, and no MP was allowed to ask a ques­tion in Par­lia­ment about their activ­it­ies. As 1980s whis­tleblower Peter Wright so suc­cinctly put it, the spies could bug and burgle their way around with impunity.

So the estab­lish­ment of the ISC was a (very) lim­ited step in the right dir­ec­tion. How­ever, it is not a Par­lia­ment­ary Com­mit­tee. Its mem­bers are selec­ted by the Prime Min­is­ter, and it is answer­able only to the PM, who can vet its find­ings. The remit of the ISC only cov­ers mat­ters of spy policy, admin­is­tra­tion and fin­ance. It is not empowered to invest­ig­ate alleg­a­tions of oper­a­tion­al incom­pet­ence nor crimes com­mit­ted by the spies. And its annu­al report has become a joke with­in the media, as there are usu­ally more redac­tions than coher­ent sentences.

The ISC’s first big test came in the 1990s fol­low­ing the Shayler and Tom­lin­son dis­clos­ures. These involved detailed alleg­a­tions of illeg­al invest­ig­a­tions, bungled oper­a­tions and assas­sin­a­tion attempts against for­eign heads of state. It is dif­fi­cult to con­ceive of more hein­ous crimes com­mit­ted by our shad­owy spies.

But how did the ISC react? If one reads the reports from the rel­ev­ant years, the only aspect that exer­cised the ISC was Shayler’s inform­a­tion that MI5 had on many MPs and gov­ern­ment min­is­ters. The ISC was reas­sured by MI5 that would no longer be able to use these files. That’s it.

For­get about files being illeg­ally held on hun­dreds of thou­sands of inno­cent UK cit­izens; for­get about the illeg­al phone taps, the pre­vent­able deaths on UK streets from IRA bombs, inno­cent people being thrown in pris­on, and the assas­sin­a­tion attempt against Col­on­el Gad­dafi of Libya. The fear­less and etern­ally vigil­ant ISC MPs were primar­ily con­cerned about receiv­ing reas­sur­ance that their files would no longer be vet­ted by MI5 officers on the basis of mem­ber­ship to “sub­vers­ive” organ­isa­tions. What were they afraid of – that shame­ful evid­ence of early left-wing activ­ity from their fiery youth might emerge? Heav­en for­bid under New Labour.

Barely a day goes by when news­pa­per head­lines do not remind us of ter­rible threats to our nation­al secur­ity. Only in the last week, the UK media has repor­ted that the threat of espi­on­age from Rus­sia and China is at its highest since the days of the Cold War; that resur­gent Repub­lic­an ter­ror groups in North­ern Ire­land pose a graver danger to us even than Al Qaeda; that rad­ic­al­ised Brit­ish Muslim youth are return­ing from fight­ing with the Taliban to wage war on the streets of the UK. We have to take all this on trust, des­pite the intel­li­gence com­munity’s appalling track record of bend­ing the truth to gain more powers and resources. This is why mean­ing­ful over­sight is so vitally import­ant for the health of our demo­cracy. The ISC is a long way from provid­ing that.