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.

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.

Germans end investigation into Merkel phone tapping

My recent inter­view on RT about the end­ing of the invest­ig­a­tion by the Ger­man author­it­ies into the appar­ently illeg­al bug­ging of Chan­cel­lor Angela Merkel’s phone, plus more on the wider com­pli­city of the Ger­man intel­li­gence services:

rt_merkel_spying

RT interview about GCHQ

Here is my recent inter­view on RT dis­cuss­ing the UK listen­ing post, GCHQ, its pros­ti­tu­tion to Amer­ica’s NSA, and the fail­ure of oversight:

rt_gchq_spying.cleaned

Interview with George Galloway

Here is my recent inter­view with Brit­ish MP George Gal­lo­way on his RT show, “Sput­nik”.

george_galloway.cleaned

RT Breaking the Set — interview about spies with Abby Martin

Here’s my inter­view from yes­ter­day on RT’s excel­lent Break­ing the Set show with host, Abby Mar­tin.  We dis­cussed all things spy, sur­veil­lance, Snowden, over­sight, and pri­vacy.  A fun and lively inter­view!  Thanks, Abby.

uk_spies_controlling_past_present_future

Rendition and torture — interview on RT

Here’s my recent inter­view on RT’s excel­lent and incis­ive new UK polit­ics pro­gramme, “Going Under­ground”.  In it I dis­cuss rendi­tion, tor­ture, spy over­sight and much more:

Going Under­ground Ep 22 1 from Annie Machon on Vimeo.

Voice of Russia radio interview about spies, oversight, whistleblowers, and Snowden.

Here is an inter­view I did for Voice of Rus­sia radio in Lon­don last week about spies and their rela­tion­ship with our demo­crat­ic pro­cesses, over­sight, Edward Snowden and much more:

Voice of Rus­sia radio inter­view from Annie Machon on Vimeo.

BBC World interview re UK spy accountability

Here’s a recent inter­view I did for BBC World about the three top Brit­ish spies deign­ing, for the first time ever, to be pub­licly ques­tioned by the Intel­li­gence and Secur­ity Com­mit­tee in par­lia­ment, which has a notion­al over­sight role:

BBC World inter­view on UK Par­laiment­ary hear­ings on NSA/Snowden affair from Annie Machon on Vimeo.

It sub­sequently emerged that they only agreed to appear if they were told the ques­tions in advance.  So much for this already incred­ibly lim­ited over­sight cap­ab­il­ity in a notion­al West­ern democracy.….

Channel 4 interview re UK spy accountability

On the day the UK spy chiefs were called to account for the first time by the Intel­li­gence and Secur­ity Com­mit­tee in the Brit­ish parliament:

Spy account­ab­il­ity and the ISC — Chan­nel 4 News from Annie Machon on Vimeo.

BBC World Service interview about NSA and spy oversight

Here’s an inter­view I did for BBC World Ser­vice radio about the NSA’a glob­al elec­tron­ic sur­veil­lance and spy oversight:

BBC “World Have Your Say” debate

A recent inter­view on BBC World Ser­vice radio, on “World Have Your Say”.  An inter­est­ing debate with some oth­er former intel­li­gence types:

BBC World Ser­vice “World Have Your Say” inter­view from Annie Machon on Vimeo.

RT interview on spy oversight

Here’s my inter­view on RT about the fail­ure of polit­ic­al over­sight of the spies in the UK and US:

RT: Snowden files reveal spy agency’s efforts to escape leg­al chal­lenge from Annie Machon on Vimeo.
Also pos­ted on www​.maxkeiser​.com.