The Real News Network on Whistleblowing, Part 2

Part Two of my recent inter­view on the excel­lent, inde­pend­ent and fear­less Real News Net­work:

Subversion” old and new

Abu_Qatada_CartoonAn inter­est­ing art­icle in yesterday’s Tele­graph by polit­ical com­ment­ator Peter Oborne about Abu Qatada.  This case has caused much sound and fury amongst the Brit­ish polit­ical and media classes over the last couple of days.  Oborne’s art­icle strips out the bom­bast and takes us back to basic prin­ciples — as did this other recent art­icle in the Inde­pend­ent a day or two ago by Christina Patterson.

How­ever, what really grabbed my atten­tion in Oborne’s art­icle was his ref­er­ence to David Max­well Fyfe, the Brit­ish politi­cian and law­yer who was tasked by Sir Win­ston Churchill to lay the found­a­tions of the European sys­tem of human rights after the atro­cit­ies of World War Two — a period when the need for basic rights was seared into people’s minds.

Maxwell_FyfeWhile Max­well Fyfe laid some good found­a­tions for European law, his name also has res­on­ance to all who worked for the UK domestic Secur­ity Ser­vice, MI5, dur­ing or in the imme­di­ate after­math of the Cold War.  It was Max­well Fyfe’s dir­ect­ive, issued in 1952, that was instru­mental in allow­ing MI5 to spy on Brit­ish polit­ical act­iv­ists sub­vers­ives.  This dir­ect­ive remained in place until 1989, when MI5 was placed on a legal foot­ing for the first time in its then 80 year his­tory, with the Secur­ity Ser­vice Act 1989. Here is a seg­ment about the Max­well Fyfe dir­ect­ive from my old book, “Spies, Lies and Whis­tleblowers”:

Back­ground to subversion

At this time MI5 was still using the same cri­teria for record­ing indi­vidual sub­vers­ives and their sym­path­isers as was set out by Home Sec­ret­ary David Maxwell-Fyfe in 1952.  He called on the ser­vices to identify any indi­vidual engaged in under­min­ing Par­lia­ment­ary demo­cracy, national secur­ity and/or the eco­nomic well-being of the UK by viol­ent, indus­trial or polit­ical means.  In fact, many would argue that groups who used only polit­ical means to get their point across were merely exer­cising their demo­cratic rights.  In fact, MI5 used pho­tos of demon­stra­tions, cop­ies of elec­tion lists and even lists of sub­scribers to rad­ical left-wing book clubs as indic­at­ors of sub­vers­ive sym­pathy and mem­ber­ship.  Of course, the world was a very dif­fer­ent place when I joined the sec­tion, almost 40 years after Maxwell-Fyfe’s declar­a­tion, not least because of the dis­in­teg­ra­tion of the Soviet Union and its East­ern bloc allies.  

TrotskyFrom Maxwell-Fyfe’s state­ment to Par­lia­ment, which was never made law, MI5 and sub­sequent gov­ern­ments used to argue that all mem­bers of cer­tain parties –such as the Com­mun­ist Party of Great Bri­tain (CPGB) or later the bewil­der­ing array of Trot­sky­ists, with names like the Inter­na­tional Marx­ist Group (IMG), Work­ers’ Revolu­tion­ary Party (WRP) Major and Minor, Revolu­tion­ary Com­mun­ist Party (RCP) and Revolu­tion­ary Com­mun­ist Group (RCG), anarch­ists and the extreme right — were threats to the secur­ity of the state or our demo­cratic sys­tem.  This in itself is a con­ten­tious pro­pos­i­tion.  None of these Trot­sky­ist groups was cul­tiv­at­ing East­ern bloc fin­ance or build­ing bombs in smoky back rooms, but were instead using legit­im­ate demo­cratic meth­ods to make their case, such as stand­ing in elec­tions, organ­ising demon­stra­tions and edu­cat­ing ‘the work­ers’.  They cer­tainly had no alle­gi­ance to a for­eign power, the primary raison d’etre for the invest­ig­a­tion of sub­ver­sion, because, unlike the Com­mun­ist Party, they abhorred the East­ern bloc.

Greenham-commonSince MI5 was effect­ively invest­ig­at­ing indi­vidu­als for hold­ing opin­ions the gov­ern­ment did not like — a very un-British pos­i­tion — it was always at pains to point out that it took its respons­ib­il­it­ies with regard to human rights very ser­i­ously, although not ser­i­ously enough to ensure that these activ­it­ies were reg­u­lated by a legal frame­work.  All the service’s phone taps prior to the passing of the Inter­cep­tion of Com­mu­nic­a­tions Act (IOCA) in 1985 were unlaw­ful because there was no legis­la­tion gov­ern­ing the inter­cep­tion of communications.”

The dir­ect­ive was not a leg­ally bind­ing doc­u­ment, but it was the basis for the work of F Branch, MI5’s massive sec­tion tasked with hunt­ing “sub­vers­ives” dur­ing those dec­ades.  It allowed intel­li­gence officers great lat­it­ude in inter­pret­ing what was deemed sub­vers­ive activ­ity and who were “legit­im­ate’ tar­gets.  And yet there were many, many instances of the abuse of this sys­tem by para­noid, senior intel­li­gence officers over the years.  More inform­a­tion can be found in this chapter on sub­ver­sion from the book.

So my point is, yes, Bri­tain ostens­ibly led the way in devel­op­ing a sys­tem to pro­tect human rights in the after­math of the Second World War.  But the very archi­tect of that sys­tem then pro­duced the dir­ect­ive that gave Brit­ish spies carte blanche to invest­ig­ate polit­ical dis­sid­ents within their own coun­try, which they abused for decades.

Mark_KennedyAnd now we have com­ment­at­ors rightly say­ing that we should uphold basic human rights’ val­ues in cases such as Abu Qatada.  But what about all the UK act­iv­ists who were illeg­ally invest­ig­ated by MI5 from 1952 to the 1990s? And, more per­tin­ently today, what about all the act­iv­ists and pro­test­ers who have been aggress­ively spied upon by the unac­count­able, under­cover police of the NPOIU since the 1990s, under the illegal cat­egory of “domestic extrem­ists”?

I was heartened to see 87 year old artist and peace act­iv­ist John Catt is suing the NPOIU for intrus­ive sur­veil­lance over the last 6 years.  Per­haps he should quote Max­well Fyfe on human rights dur­ing his case?

The Official Secrets Act — when will the British media learn?

I have been watch­ing with a cer­tain cyn­ical interest the unfold­ing of Oper­a­tion Weet­ing, one of the pleth­ora of Met­ro­pol­itan Police invest­ig­a­tions into the UK phone hack­ing scan­dal, involving many of our favour­ite play­ers: shady private invest­ig­at­ors, pred­at­ory journ­al­ists, bent cop­pers, and politi­cians con­tort­ing them­selves in an effort to pro­tect both their own repu­ta­tions and their Friends in High Places.  And the ripples are spread­ing inter­na­tion­ally.  Noth­ing like a little bit of globilisation.…

Rupert_and_Rebekah The Guard­ian news­pa­per has made most of the early run­ning in expos­ing the cor­rupt prac­tices of the now defunct News of the Screws, high­light­ing all the dubi­ous tabloid prac­tices of hack­ing, blagging, pinging, and god knows what else.  All this done with the help of bottom-feeding private invest­ig­at­ors, but also mani­festly with the help of cor­rupt police officers who were not averse to the idea of tak­ing a bribe to help their friends in Wap­ping.  And how far might this “trickle down cor­rup­tion” might have gone, um, up?

Des­pite the self-righteousness of other UK news­pa­pers, it has also now become appar­ent that these dubi­ous and poten­tially illegal prac­tices were com­mon through­out Fleet Street, and other national news­pa­pers are also under investigation.

And yet it appears that all this could have been nipped in the bud over a dec­ade ago, when Steven Nott, a con­cerned Brit­ish cit­izen, tried to expose the vul­ner­ab­il­ity of mobile phones after he stumbled across the prac­tice by acci­dent.  He took his find­ings to a vari­ety of national news­pa­pers, all of whom seem to have ini­tially thought there was a good story, but every time the news was bur­ied.  Well, I sup­pose it would be, wouldn’t it — after all, why would hacks expose a prac­tice that could be so useful?

But back to the dear old OSA and the media.

Police_news_international In yesterday’s Observer news­pa­per, it was repor­ted that the police have threatened the journ­al­ists at The Guard­ian with the Offi­cial Secrets Act (1989) to force them to dis­close the iden­tity of their source amongst the police officer(s) in Oper­a­tion Weet­ing who leaked use­ful inform­a­tion to the news­pa­per to help its expos­ure of illegal prac­tices.  And, rightly, the great and the good are up in arms about this dra­conian use of a par­tic­u­larly invi­di­ous law:

“John Cooper, a lead­ing human rights law­yer and vis­it­ing pro­fessor at Cardiff Uni­ver­sity, echoed Evans’s con­cerns. “In my view this is a mis­use of the 1989 act,” Cooper said. “Fun­da­ment­ally the act was designed to pre­vent espi­on­age. In extreme cases it can be used to pre­vent police officers tip­ping off crim­in­als about police invest­ig­a­tions or from selling their stor­ies. In this instance none of this is sug­ges­ted, and many believe what was done was in the pub­lic interest.

“Cooper added: “The police action is very likely to con­flict with art­icle 10 of the European Con­ven­tion on Human Rights, which pro­tects free­dom of speech.”

But I think he’s miss­ing a bit of recent legal his­tory here.  The UK had the 1911 OSA which was sup­posed to pro­tect the coun­try from espi­on­age and trait­ors, who faced 14 years in prison upon con­vic­tion.  Need­less to say this pro­vi­sion was rarely used — most of the cold war Soviet moles in the estab­lish­ment were allowed to slink off to the USSR, or at the very most be stripped of their “K”.

How­ever, as I’ve writ­ten before, the revised 1989 OSA was much more use­ful for the estab­lish­ment.  It was spe­cific­ally put in place to stop whis­tleblow­ing after the embar­rass­ment of the 1980s Clive Ponting/Belgrano case. 

Ponting The new act was spe­cific­ally designed to strip away the “pub­lic interest” defence used by Pont­ing in his trial, and also to pen­al­ise journ­al­ists who had the temer­ity to report leaks and whis­tleblow­ing from the heart of the estab­lish­ment.  The OSA (1989) has been used extens­ively since the late 1990s, des­pite the fact that many senior fig­ures in the former Labour gov­ern­ment opposed its pro­vi­sions when it went through Par­lia­ment.   Journ­al­ists are just as liable as whis­tleblowers or “leak­ers” under the pro­vi­sions of this act (the infam­ous Sec­tion 5).

So, back to The Guard­ian and its legal cham­pi­ons.  I agree with what they are say­ing: yes, the 1989 OSA  has a chilling effect on free­dom of speech that unduly vic­tim­ises both the whis­tleblower and the journ­al­ist; yes, it is a uniquely dra­conian law for a notional West­ern demo­cracy to have on its books; yes, there should be a defence of “act­ing in the pub­lic interest”; and yes, the OSA should be deemed to be incom­pat­ible with Sec­tion 10(2) of the European Con­ven­tion of Human Rights, guar­an­tee­ing free speech, which can only be cir­cum­scribed in the interests of “national secur­ity”, itself a leg­ally undefined, neb­u­lous, and con­tro­ver­sial phrase under Brit­ish law.

David_Shayler_High_Court But if all the out­raged law­yers read up on their case law, par­tic­u­larly the hear­ings and legal dog­fights in the run up to Regina v Shayler cases, they will see that all these issues have been addressed, appar­ently to the sat­is­fac­tion of the hon­our­able m’luds who preside over Brit­ish courts, and cer­tainly to the estab­lish­ment fig­ures who like to use the OSA as their “get out of jail free” card.

So I wish The Guard­ian journ­al­ists well in this con­front­a­tion.  But I have to say, per­haps they would not have found them­selves in this situ­ation today vis a vis the OSA if, rather than just a few brave journ­al­ists, the media insti­tu­tions them­selves had put up a more robust fight against its pro­vi­sions dur­ing its bas­tard birth in 1989 and its sub­sequent abuse.

It has been repor­ted today that the police may have down­graded their invest­ig­a­tion to a purely crim­inal mat­ter, not the OSA.  Whatever hap­pens does not obvi­ate the need for the media to launch a con­cer­ted cam­paign to call for reform of the invi­di­ous OSA.  Just because one of their own is no longer threatened does not mean the chilling threat of this law has gone away.  As Mar­tin Luther King said while imprisoned in 1963:

“Injustice any­where is a threat to justice everywhere.”

I would also sug­gest the new gen­er­a­tion work­ing in the Brit­ish media urgently read this excel­lent book­let pro­duced by John Wadham of Liberty and Art­icle 19 way back in 2000 Down­load Article_19_Liberty_on_OSA_2000,  to remind them­selves of fun­da­mental argu­ments against dra­conian legis­la­tion such as the OSA and in favour of the free­dom of the press.

Spy documents found in Libya reveal more British double dealing

Musa_KousaA cache of highly clas­si­fied intel­li­gence doc­u­ments was recently dis­covered in the aban­doned offices of former Libyan spy mas­ter, For­eign Min­is­ter and high-profile defector, Musa Kusa.

These doc­u­ments have over the last couple of weeks provided a fas­cin­at­ing insight into the grow­ing links in the last dec­ade between the former UK Labour gov­ern­ment, par­tic­u­larly Tony Blair, and the Gad­dafi régime.  They have dis­played in oily detail the degree of toady­ing that the Blair gov­ern­ment was pre­pared to coun­ten­ance, not only to secure luc­rat­ive busi­ness con­tracts but also to gloss over embar­rass­ing epis­odes such as Lock­er­bie and the false flag MI6-backed 1996 assas­sin­a­tion plot against Gaddafi.

These doc­u­ments have also appar­ently revealed dir­ect involve­ment by MI6 in the “extraordin­ary rendi­tion” to Tripoli and tor­ture of two Liby­ans.  Iron­ic­ally it has been repor­ted that they were wanted for being mem­bers of the Libyan Islamic Fight­ing Group, the very organ­isa­tion that MI6 had backed in its failed 1996 coup.

The sec­u­lar dic­tat­or­ship of Col Gad­dafi always had much to fear from Islam­ist extrem­ism, so it is per­haps unsur­pris­ing that, after Blair’s notori­ous “deal in the desert” in 2004, the Gad­dafi régime used its con­nec­tions with MI6 and the CIA to hunt down its enemies.  And, as we have all been end­lessly told, the rules changed after 9/11…

The tor­ture  vic­tims, one of whom is now a mil­it­ary com­mander of the rebel Libyan forces, are now con­sid­er­ing suing the Brit­ish gov­ern­ment.  Jack Straw, the For­eign Sec­ret­ary at the time, has tried to shuffle off any blame, stat­ing that he could not be expec­ted to know everything that MI6 does.

Well, er, no — part of the job descrip­tion of For­eign Sec­ret­ary is indeed to over­see the work of MI6 and hold it to demo­cratic account­ab­il­ity, espe­cially about such ser­i­ous policy issues as “extraordin­ary rendi­tion” and tor­ture.  Such oper­a­tions would indeed need the min­is­terial sign-off to be legal under the 1994 Intel­li­gence Ser­vices Act.

There has been just so much hot air from the cur­rent gov­ern­ment about how the Gib­son Tor­ture Inquiry will get to the bot­tom of these cases, but we all know how tooth­less such inquir­ies will be, cir­cum­scribed as they are by the terms of the Inquir­ies Act 2005.  We also know that Sir Peter Gib­son him­self has for years been “embed­ded” within the Brit­ish intel­li­gence com­munity and is hardly likely to hold the spies mean­ing­fully to account.

MoS_Shayler_11_09_2011So I was par­tic­u­larly intrigued to hear that the the cache of doc­u­ments showed the case of David Shayler, the intel­li­gence whis­tleblower who revealed the 1996 Gad­dafi assas­sin­a­tion plot and went to prison twice for doing so, first in France in 1998 and then in the UK in 2002, was still a sub­ject of dis­cus­sion between the Libyan and UK gov­ern­ments in 2007. And, as I have writ­ten before, as late as 2009 it was obvi­ous that this case was still used by the Liby­ans for lever­age, cer­tainly when it came to the tit-for-tat nego­ti­ations around case of the murder in Lon­don out­side the Libyan Embassy of WPC Yvonne Fletcher in 1984.

Of course, way back in 1998, the Brit­ish gov­ern­ment was all too ready to crush the whis­tleblower rather than invest­ig­ate the dis­clos­ures and hold the spies to account for their illegal and reck­less acts.  I have always felt that this was a fail­ure of demo­cracy, that it ser­i­ously under­mined the future work and repu­ta­tion of the spies them­selves, and par­tic­u­larly that it was such a shame for the fate of the PBW (poor bloody whis­tleblower).

But it now appears that the Brit­ish intel­li­gence community’s sense of omni­po­tence and of being above the law has come back to bite them.  How else explain their slide into a group-think men­tal­ity that par­ti­cip­ates in “extraordin­ary rendi­tion” and tor­ture?

One has to won­der if wily old Musa Kusa left this cache of doc­u­ments behind in his aban­doned offices as an “insur­ance policy”, just in case his defec­tion to the UK were not to be as com­fort­able as he had hoped — and we now know that he soon fled to Qatar after he had been ques­tioned about the Lock­er­bie case.

But whether an hon­est mis­take or cun­ning power play, his actions have helped to shine a light into more dark corners of Brit­ish gov­ern­ment lies and double deal­ing vis a vis Libya.…

UK Intelligence and Security Committee to be reformed?

The Guardian’s spook com­ment­ator extraordin­aire, Richard Norton-Taylor, has repor­ted that the cur­rent chair of the Intel­li­gence and Secur­ity Com­mit­tee (ISC) in the UK Par­lia­ment, Sir Mal­colm Rif­kind, wants the com­mit­tee to finally grow a pair.  Well, those weren’t quite the words used in the Grauny, but they cer­tainly cap­ture the gist.

If Rifkind’s stated inten­tions are real­ised, the new-look ISC might well provide real, mean­ing­ful and demo­cratic over­sight for the first time in the 100-year his­tory of  the three key UK spy agen­cies — MI5, MI6, and GCHQ, not to men­tion the defence intel­li­gence staff, the joint intel­li­gence com­mit­tee and the new National Secur­ity Council .

FigleafFor many long years I have been dis­cuss­ing the woe­ful lack of real demo­cratic over­sight for the UK spies.  The privately-convened ISC, the demo­cratic fig-leaf estab­lished under the aegis of the 1994 Intel­li­gence Ser­vices Act (ISA), is appoin­ted by and answer­able only to the Prime Min­is­ter, with a remit only to look at fin­ance, policy and admin­is­tra­tion, and without the power to demand doc­u­ments or to cross-examine wit­nesses under oath.  Its annual reports are always heav­ily redac­ted and have become a joke amongst journalists.

When the remit of the ISC was being drawn up in the early 1990s, the spooks were apo­plectic that Par­lia­ment should have any form of over­sight what­so­ever.  From their per­spect­ive, it was bad enough at that point that the agen­cies were put on a legal foot­ing for the first time.  Spy think­ing then ran pretty much along the lines of “why on earth should they be answer­able to a bunch of here-today, gone-tomorrow politi­cians, who were leaky as hell and gos­siped to journ­al­ists all the time”?

So it says a great deal that the spooks breathed a huge, col­lect­ive sigh of relief when the ISC remit was finally enshrined in law in 1994.  They really had noth­ing to worry about.  I remem­ber, I was there at the time.

This has been borne out over the last 17 years.  Time and again the spies have got away with telling bare­faced lies to the ISC.  Or at the very least being “eco­nom­ical with the truth”, to use one of their favour­ite phrases.  Former DG of MI5, Sir Stephen Lander, has pub­licly said that “I blanche at some of the things I declined to tell the com­mit­tee [ISC] early on…”.  Not to men­tion the out­right lies told to the ISC over the years about issues like whis­tleblower testi­mony, tor­ture, and counter-terrorism meas­ures.

But these new devel­op­ments became yet more fas­cin­at­ing to me when I read that the cur­rent Chair of the ISC pro­pos­ing these reforms is no less than Sir Mal­colm Rif­kind, crusty Tory grandee and former Con­ser­vat­ive For­eign Min­is­ter in the mid-1990s.

For Sir Mal­colm was the For­eign Sec­ret­ary notion­ally in charge of MI6 when the intel­li­gence officers, PT16 and PT16/B, hatched the ill-judged Gad­dafi Plot when MI6 fun­ded a rag-tag group of Islamic extrem­ist ter­ror­ists in Libya to assas­sin­ate the Col­onel, the key dis­clos­ure made by David Shayler when he blew the whistle way back in the late 1990s.

Obvi­ously this assas­sin­a­tion attempt was highly reck­less in a very volat­ile part of the world; obvi­ously it was uneth­ical, and many inno­cent people were murdered in the attack; and obvi­ously it failed, lead­ing to the shaky rap­proche­ment with Gad­dafi over the last dec­ade.  Yet now we are see­ing the use of sim­ilar tac­tics in the cur­rent Libyan war (this time more openly) with MI6 officers being sent to help the rebels in Benghazi and our gov­ern­ment openly and shame­lessly call­ing for régime change.

Malcolm_RifkindBut most import­antly from a legal per­spect­ive, in 1996 the “Gad­dafi Plot” MI6 appar­ently did not apply for prior writ­ten per­mis­sion from Rif­kind — which they were leg­ally obliged to do under the terms of the 1994 Intel­li­gence Ser­vices Act (the very act that also estab­lished the ISC).  This is the fabled, but real, “licence to kill” — Sec­tion 7 of the ISA — which provides immunity to MI6 officers for illegal acts com­mit­ted abroad, if they have the requis­ite min­is­terial permission.

At the time, Rif­kind pub­licly stated that he had not been approached by MI6 to sanc­tion the plot when the BBC Pan­or­ama pro­gramme con­duc­ted a spe­cial invest­ig­a­tion, screened on 7 August 1997.  Rifkind’s state­ment was also repor­ted widely in the press over the years, includ­ing this New States­man art­icle by Mark Thomas in 2002.

That said, Rif­kind him­self wrote earlier this year in The Tele­graph that help should now be given to the Benghazi “rebels” — many of whom appear to be mem­bers of the very same group that tried to assas­sin­ate Gad­dafi with MI6’s help in 1996 — up to and includ­ing the pro­vi­sion of arms.  Rifkind’s view of the leg­al­it­ies now appear to be some­what more flex­ible, whatever his stated pos­i­tion was back in the 90s. 

Of course, then he was notion­ally in charge of MI6 and would have to take the rap for any polit­ical fall-out.  Now he can relax into the role of “quis cus­todiet ipsos cus­todes?”.  Such a relief.

I shall be watch­ing devel­op­ments around Rifkind’s pro­posed reforms with interest.

The Israeli Embassy Two — a gross miscarriage of justice

Samar_Alami Jawad_Botmeh Over the last few years there have been a num­ber of egre­gious cases of police and state cover-ups in the UK around the deaths and wrong­ful pro­sec­u­tions of inno­cent people.

This brings to my mind the appalling mis­car­riage of justice that occurred in the 1990s when two Palestinian stu­dents, a young woman called Samar Alami and a young man called Jawad Bot­meh, were both wrong­fully con­victed of con­spir­acy to bomb the Israeli embassy in Lon­don in July 1994. 

In this case a highly soph­ist­ic­ated car bomb as det­on­ated out­side the embassy.  Thank­fully nobody was killed, but a num­ber of people suffered minor injur­ies.   Alami and Bot­meh had con­nec­tions to Palestinian polit­ical sup­port groups based in Lon­don at the time, many of whom were roun­ded up dur­ing the invest­ig­a­tion.  Bot­meh had naively helped out a shad­owy and never-identified fig­ure called Reda Moghr­abi, who asked for assist­ance in buy­ing a second-hand car at auc­tion.  This was the car that was used in the explosion.

Why is this case an example of estab­lish­ment cover-up?  Well,  this was one of the cases that former MI5 officer David Shayler blew the whistle on dur­ing the 1990s.  He revealed the exist­ence of two rel­ev­ant doc­u­ments that should have been dis­closed to the defence but, for some unac­count­able reason, were not.

The first, an agent report from a cred­ible and trus­ted source, poin­ted to a non-Palestinian group plan­ning the attack before it had even occurred.  This report was not acted upon by the MI5 officer respons­ible, who then tried to cover up her mis­take.  She was caught out, and there was a much-discussed internal inquiry into the mat­ter within MI5’s G Branch (inter­na­tional ter­ror­ism) in late 1994.

But there was another doc­u­ment — one writ­ten by G9/1, the senior MI5 officer who over­saw the post-incident invest­ig­a­tion.  His view was that Mossad, the external Israeli intel­li­gence agency, had car­ried out a con­trolled explo­sion out­side its own embassy (the shad­owy and uniden­ti­fied Reda Moghr­abi being the poten­tially cru­cial miss­ing link) in order to acquire the long-demanded addi­tional secur­ity pro­tec­tion around Israeli interests in the UK, and also to shat­ter the Palestinian sup­port net­works in Lon­don — a long-term object­ive of Mossad.

The gov­ern­ment at the time tried to dis­miss these dis­clos­ures.  How­ever, the much-missed Private Eye invest­ig­at­ive   journ­al­ist, Paul Foot, and the indefatig­able law­yer, Gareth Peirce, fol­lowed them up and pur­sued them tire­lessly through the media and the courts

And guess what?  It turns out that these two key doc­u­ments had indeed not been dis­closed to the legal defence team dur­ing the trial of Alami and Bot­meh — and not just by the hap­less spooks.  It emerged dur­ing the appeal hear­ing that no fewer than seven people from a vari­ety of police and intel­li­gence organ­isa­tions had failed to dis­close the rel­ev­ant doc­u­ment­a­tion to the defence.  This can­not be explained away as an inno­cent over­sight, a cock-up — it bears all the hall­marks of a delib­er­ate, sys­temic estab­lish­ment cover-up.

All this rep­res­en­ted, at the very least, a need for a retrial but also a pos­sible gross mis­car­riage of justice.  And yet, while acknow­ledging that these doc­u­ments did indeed exist dur­ing the appeal hear­ing and bey­ond, the presid­ing m’luds decided to ignore all case law and European law and let those two inno­cents rot in prison.  After all, it would be ter­ribly embar­rass­ing to vin­dic­ate the actions of an intel­li­gence whis­tleblower, wouldn’t it?

As a res­ult, the poor pawns in this sick estab­lish­ment game, Jawad Bot­meh and Samar Alami, ended up serving their full sen­tences, des­pite the over­whelm­ing body of evid­ence prov­ing their inno­cence, and were finally released in 2008 and 2009 respectively.

For any­one inter­ested in the detailed hor­ror story behind this flag­rant mis­car­riage of justice, here is the rel­ev­ant chapter from my long-defunct book: Down­load The_Israeli_Embassy_Case

Libya: my enemy’s enemy is my friend, until he becomes my enemy again…

UK Prime Min­is­ter, David Cameron, reportedly made the start­ling state­ment recently that the mil­it­ary inter­ven­tion in Libya “unlike Iraq, is neces­sary, legal and right”. 

Blair_takes_the_oathWould it not be won­der­ful if he could take the next logical step towards joined-up think­ing and con­sider send­ing our esteemed Middle East Peace Envoy, a cer­tain Mr T Blair, over for a spot of por­ridge at the Inter­na­tional Crim­inal Court in The Hague?  After all, Cameron has now clearly implied that the Iraq war was “unne­ces­sary, illegal and wrong”.….

But back to Libya.  With the ongo­ing crisis — now war — much is being writ­ten about how the pre­vi­ous UK gov­ern­ment col­lab­or­ated with the Gad­dafi régime in the last dec­ade — while tacitly glossing over the last year of Coali­tion gov­ern­ment where, no doubt, sim­ilar levels of coöper­a­tion and back-slapping and money-grubbing were going on at the highest levels to ensure the con­tinu­ing flow of oil con­tracts to the UK.

But, yes, we should be dis­sect­ing the Labour/Gaddafi power bal­ance.  Gad­dafi had New Labour over the pro­ver­bial (oil) bar­rel from the late 1990s, when MI5 whis­tleblower David Shayler exposed the failed and illegal MI6 assas­sin­a­tion plot against Col­onel Gad­dafi, using as fall-guys a rag-tag group of Islamic extrem­ists.  The newly-elected Labour government’s knee-jerk response at the time was to believe the spook’s deni­als and cover-up for them.  Per­haps not so sur­pris­ing, as the gov­ern­ment min­is­ters of the day were uncom­fort­ably aware that the spies held files on them.  But this craven response did leave the gov­ern­ment pos­i­tion exposed, as Gad­dafi well knew.

MoS_G_Plot-credible_1997The CIA was fully cog­nis­ant of this failed plot at the time, as were the French intel­li­gence ser­vices.  The Gad­dafi Plot is once again being ref­er­enced in the media, includ­ing the Tele­graph, and a recent edi­tion of the Huff­ing­ton Post.  The details are still rel­ev­ant, as it appears that our enter­pris­ing spooks are yet again reach­ing out to a rag-tag group of rebels — primar­ily Islam­ists and the Senussi roy­al­ists based around Benghazi. 

The les­sons of the reck­less and ill-thought out Gad­dafi Plot were brushed under the car­pet, so his­tory may yet again be doomed to repeat itself.  Yes, Gad­dafi has been one of the biggest back­ers of ter­ror­ism ever, and yes he has bru­tal­ised parts of his own pop­u­la­tion, but if he were deposed how can the West be sure that those step­ping into the power vacuum would not be even more dangerous?

Musa_Kousa_Hillary_Clinton_NY_2010The Libyan gov­ern­ment con­tin­ued to use the 1996 MI6 assas­sin­a­tion plot as lever­age in its nego­ti­ations with the New Labour gov­ern­ment right up until (pub­licly at least) 2009.  Musa Kousa, the cur­rent For­eign Min­is­ter, played a key role through­out.  For many years Kousa was the head of the Libyan External Secur­ity Organsi­ation and was widely seen as the chief archi­tect of inter­na­tional Libyan-backed ter­ror­ism against the USA, the UK and France. 

Another appar­ent example of this moral black­mail caught my eye recently — this report in the Daily Mail.  Saif al-Islam Gad­dafi was afforded MI6-backed pro­tec­tion when he was finally allowed into the UK in Septem­ber 2002 to study at the LSE

The tim­ing was par­tic­u­larly inter­est­ing, as only months earlier Saif had won a libel case against the UK’s Sunday Tele­graph news­pa­per.  A grov­el­ling apo­logy was made by the news­pa­per, but Saif refrained from ask­ing for “exem­plary dam­ages” — which he would almost cer­tainly have won.  The res­ult­ing pay-off for this restraint appears to be that a mere five months later he was wel­comed into the UK with MI6-facilitated protection.

Saif’s rela­tions with the UK had not always been so rosy. As back­ground to this case, in 1995 the Sunday Tele­graph had fallen hook, line and sinker for a MI6 clas­sic pro­pa­ganda oper­a­tion.  As The Guard­ian repor­ted, the secret­ive MI6 media manip­u­la­tion sec­tion, Inform­a­tion Oper­a­tions, (I/Ops), had suc­cess­fully spun a fake story to hap­less spook hack, Con Cough­lin, that Gad­dafi Junior was involved in cur­rency fraud.  This story was fake, but the paper trail it pro­duced was used by the spies as a pre­text to pre­vent Saif from enter­ing the UK at the time. 

Saif_Prince_AndrewBy 2002 this was all old his­tory, of course.  Saif was wel­comed to the UK, offi­cially to study for his MA and PhD at the Lon­don School of Eco­nom­ics (and show­ing his grat­it­ude to that august insti­tu­tion with a hefty dona­tion of £1.5 mil­lion — it makes the new tuition fees for UK stu­dents seem bet­ter value for money), and unof­fi­cially to chum up to vari­ous Estab­lish­ment ena­blers to end Libya’s pariah status, open up luc­rat­ive trade chan­nels, and get the SAS to train up Libya’s spe­cial forces

The UK mil­it­ary must be just lov­ing that now.….

So I get the feel­ing that the UK gov­ern­ment has over the last dec­ade indeed “danced with the devil”.  After dec­ades of view­ing Libya and Col­onel Gad­dafi as a Pri­or­ity One JIC intel­li­gence tar­get, the UK gov­ern­ment fell over itself to appease the Gad­dafi régime in the wake of the bungled assas­sin­a­tion attempt in 1996 and the libelling of his son.  These were the sticks Gad­dafi used; the car­rots were undoubtedly the Saif/MI6-facilitated oil con­tracts

Of course, all this is now pretty much a moot point, fol­low­ing Dave Cameron’s “neces­sary, legal and right” mil­it­ary inter­ven­tion.  If the wily old Col­onel man­ages to hang on grimly to some semblence of power (and he has an impress­ive track-record of sur­viv­ing against the odds), then I doubt if he’ll be happy to coöper­ate with Brit­ish oil com­pan­ies in the future.  At the very least. 

Gad­dafi has already threatened “ven­geance” against the West, and it was repor­ted today that MI5 is tak­ing this all-too-preditable risk seriously.

If Gad­dafi is deposed, who can real­ist­ic­ally pre­dict the inten­tions and cap­ab­il­it­ies of those who will fill the power vacuum?  We should have learnt from Afgh­anistan and Iraq: my enemy’s enemy is my friend — until he becomes my enemy again.….

 

Remember, remember the 5th of November.…

Annie_on_Conviction_DayNovem­ber 5th has long had many levels of res­on­ance for me: Bon­fire Night of course, when I was a child — fire­works in the garden and burnt baked pota­toes from the fire; since the age of seven, cel­eb­rat­ing the birth­day of my old­est friend; and, since 2002, the memory of hav­ing to stand up in the wit­ness stand in an Old Bailey court room in Lon­don to give a mit­ig­a­tion plea at the trial of my former part­ner, see­ing his sen­tence reduced from the expec­ted thir­teen months to a “mere” six, and then hav­ing to deal for weeks with the media fall-out.  A strange mix of memories.

David Shayler endured a “Kafkaesque trial” in 2002 in the sense that he was not allowed to make a defence due to government-imposed gag­ging orders, des­pite all the rel­ev­ant mater­ial already hav­ing been widely pubished in the media.  The issues were summed up well in this New States­man art­icle from that time. 

But the cur­rent debate about con­trol orders used against so-called ter­ror­ist sus­pects — my emphasis — adds a whole new dimen­sion to the notori­ous phrase.

This recent, excel­lent art­icle in The Guard­ian by law­yer Mat­thew Ryder about con­trol orders sums it up.  How can you defend a cli­ent if you are not even allowed access to the inform­a­tion that has led to the ori­ginal accusation?

The Lib­eral Demo­crats, in the run-up to the Gen­eral Elec­tion earlier this year, pledged to do away with con­trol orders, as they are an affront to the Brit­ish model of justice.  How­ever, MI5 is put­ting up a strong defence for their reten­tion, but then they would, wouldn’t they? 

Much of the “secret” evid­ence that leads to a con­trol order appears to come from tele­phone inter­cept, but why on earth can this evid­ence not be revealed in a court of law?  It’s not like the notion of tele­phone bug­ging is a state secret these days, as I argued in The Guard­ian way back in 2005.

BirmsixBear­ing all of the above in mind, do have a read of this inter­view with Paddy Hill, one of the vic­tims of the notori­ous wrong­ful con­vic­tions for the IRA Birm­ing­ham pub bomb­ings in 1974.  After being arres­ted, threatened, tor­tured and trau­mat­ised, he was forced to con­fess to a ter­rible crime he had not committed. 

As a res­ult, he had to endure six­teen years in prison before his inno­cence was con­firmed.  He is still suf­fer­ing the con­sequences, des­pite hav­ing found the strength to set up the “Mis­car­riages of Justice Organ­isa­tion” to help other victims.

And then have a think about whether we should blindly trust the word of the secur­ity forces and the police when they state that we have to give away yet more of our hard-won freedoms and rights in the name of the ever-shifting, ever-nebulous “war on terror”. 

Do we really need to hold ter­ror­ist sus­pects in police cells for 28 days without charge?  Will we really con­tinue to allow the head of MI6 to get away with blithely assert­ing, unchal­lenged, that Brit­ish intel­li­gence does its very best not to “bene­fit” from inform­a­tion extrac­ted via unthink­able tor­ture, as former UK ambas­sador Craig Mur­ray so graph­ic­ally described in his blog on 29th October?

I’ve said it before, and I shall say it again: the Uni­ver­sal Declar­a­tion of Human Rights was put in place for a reason in 1948.  Let’s all draw a breath, and remem­ber, remember.….

 

Sir John Sawers, head of MI6, makes historic public appearance

For the first time in 100 years “C”, the head of the UK for­eign intel­li­gence ser­vice SIS (com­monly known as MI6) has gone public.

Former career dip­lo­mat Sir John Saw­ers (he of Speedo fame) yes­ter­day made a speech to the UK Soci­ety of Edit­ors in what appeared to be a pro­fes­sion­ally dip­lo­matic rear-guard action in response to a num­ber of hot media top­ics at the moment.

Choos­ing both his audi­ence wisely and his words care­fully, he hit on three key areas:

Tor­ture: Legal cases are cur­rently going through UK courts on behalf of Brit­ish vic­tims of tor­ture, in which MI5 and MI6 intel­li­gence officers are alleged to have been com­pli­cit.  The Met­ro­pol­itan Police are cur­rently invest­ig­at­ing a num­ber of cases.  Over the last week, a Brit­ish mil­it­ary train­ing manual on “enhanced” inter­rog­a­tion tech­niques has also been made pub­lic. How­ever, Saw­ers unblush­ingly states that MI6 abides by UK and inter­na­tional law and would never get involved, even tan­gen­tially, in tor­ture cases.  In fact, he goes on to assert that the UK intel­li­gence agen­cies are train­ing the rest of the world in human rights in this regard.

 

 

Whis­tleblow­ing: In the week fol­low­ing the latest Wikileaks coup — the Iraq War Diar­ies, com­pris­ing nearly 400,000 doc­u­ments detail­ing the every­day hor­ror of life in occu­pied Iraq, includ­ing war crimes such as murder, rape and tor­ture com­mit­ted by both US and UK forces — Saw­ers states that secrecy is not a dirty word: the intel­li­gence agen­cies need to have the con­fid­ence that whis­tleblowers will not emerge to in order to guard agent and staff iden­tit­ies, as well as main­tain­ing the con­fid­ence of their inter­na­tional intel­li­gence part­ners that their (dirty?) secrets will remain, um, secret.  One pre­sumes he is advoc­at­ing against the expos­ure of war crimes and justice for the victims.

This, one also pre­sumes, is the jus­ti­fic­a­tion for US politi­cians who pro­pose cyber-attacks against Wikileaks and the declar­a­tion by some US polit­ical insiders that Julian Assange, spokes­man of the organ­isa­tion, should be treated as an unlaw­fully des­ig­nated “unlaw­ful com­batant”, sub­ject to the full rigour of extra-judicial US power, up to and includ­ing assassination. 

Spuri­ous media claims of unveri­fied “dam­age” are the hoary old chest­nuts always dragged out in whis­tleblower cases.  After Wikileaks released its Afghan War Blog in July, gov­ern­ment and intel­li­gence com­ment­at­ors made apo­ca­lyptic pre­dic­tions that the leak had put mil­it­ary and agent lives at risk.  US Defense Sec­ret­ary Robert Gates has since gone on the record to admit that this was simply not true. 

Dur­ing the Shayler whis­tleblow­ing case a dec­ade ago, the gov­ern­ment repeatedly tried to assert that agent lives had been put at risk, and yet the formal judge­ment at the end of his trial stated that this was abso­lutely not the case.  And again, with the recent Wikileaks Iraq War Blog, gov­ern­ment sources are using the same old man­tra.  When will they real­ise that they can only cry wolf so many times and get away with it?  And when will the journ­al­ists regur­git­at­ing this spin wake up to the fact they are being played?

Account­ab­il­ity:  Saw­ers goes on to describe the mech­an­isms of account­ab­il­ity, such as they are.  He accur­ately states, as I have pre­vi­ously described ad nauseam, that under the 1994 Intel­li­gence Ser­vices Act, he is notion­ally respons­ible to his polit­ical “mas­ter”, the For­eign Sec­ret­ary, who has to clear in advance any leg­ally dubi­ous for­eign oper­a­tions (up to and includ­ing murder – the fabled “licence to kill” is not fic­tion, as you can see here).

The 1994 ISA also estab­lished the Prime Minister’s Intel­li­gence and Secur­ity Com­mit­tee (ISC) in Par­lia­ment, which many com­ment­at­ors seem to believe offers mean­ing­ful over­sight of the spies.  How­ever, as I have detailed before, this is a mere fig leaf to real account­ab­il­ity: the ISC can only invest­ig­ate issues of policy, fin­ance and admin­is­tra­tion of the spy agen­cies.  Dis­clos­ures relat­ing to crime, oper­a­tional incom­pet­ence or involve­ment in tor­ture fall out­side its remit.

But what hap­pens if intel­li­gence officers decide to oper­ate bey­ond this frame­work? How would min­is­ters or the ISC ever know?  Other spy mas­ters have suc­cess­fully lied to their polit­ical mas­ters in the past, after all.

Sir John has the gall to say that, if an oper­a­tion is not cleared by the For­eign Sec­ret­ary, it does not pro­ceed.  But what about the Gadaffi Plot way back in 1996, when MI6 was spon­sor­ing a group of Islamic extrem­ist ter­ror­ists in Libya to try to assas­sin­ate Col­onel Gadaffi without, it has been asser­ted, the prior writ­ten approval of the then-Foreign sec­ret­ary, Tory politi­cian Mal­com Rif­kind?  This was repor­ted extens­ively, includ­ing in this art­icle by Mark Thomas in the New States­man. What hap­pens if rogue MI6 officers blithely side-step this notional account­ab­il­ity — because they can, because they know they will get away with it — because they have in the past?

MoS_August_97_QPlot_CredibleIn the interests of justice, UK and inter­na­tional law, and account­ab­il­ity, per­haps a new Conservative/Coalition gov­ern­ment should now reas­sess its approach to intel­li­gence whis­tleblowers gen­er­ally, and re-examine this spe­cific dis­clos­ure about Libya, which has been backed up by inter­na­tional intel­li­gence sources, both US and French, in order to achieve some sort of clos­ure for the inno­cent vic­tims in Libya of this MI6-funded ter­ror­ist attack? And it is finally time to hold the per­pet­rat­ors to account — PT16, Richard Bart­lett, and PT16B, David Wat­son, who were the senior officers in MI6 respons­ible for the murder plot.

As civ­il­ised coun­tries, we need to rethink our approach to the issue of whis­tleblow­ing. Lies, spin,  pro­sec­u­tions and thug­gish threats of assas­sin­a­tion are beneath us as soci­et­ies that notion­ally adhere to the prin­ciples of demo­cracy.  If we can only real­ist­ic­ally hope that the actions of our gov­ern­ments, mil­it­ary forces, and intel­li­gence agen­cies are trans­par­ent and account­able via whis­tleblowers, then we need to ensure that these people are leg­ally pro­tec­ted and that their voices are heard clearly.

 

Diamonds and Rust

Diamonds_and_rust_in_the_bullringSo Col­onel Gad­dafi of Libya has been dish­ing out the dip­lo­matic gifts gen­er­ously to the former US admin­is­tra­tion.  Lis­ted in the pub­lic declar­a­tion are even such items as a dia­mond ring presen­ted to former Sec­ret­ary of State, Condaleeza Rice, and other gifts to the value of $212,000.

This seems a slightly uneven dis­tri­bu­tion of lar­gesse from the Middle East to the West.  Before 9/11 and the ensu­ing war on ter­ror, Gad­dafi was still seen by the west as the head of a “rogue state”.  Bombs, rather than gifts, were more likely to rain down on him.

How­ever, since 2001 he has come back into the fold and is as keen as the coali­tion of the “will­ing” to counter the threat from Islamic extrem­ist ter­ror­ists.  So now he’s the new best­est friend of the US and UK gov­ern­ments in this unend­ing fight. 

But that was kind of inev­it­able, wasn’t it?  As a sec­u­lar Middle East­ern dic­tator, Gad­dafi has tra­di­tion­ally had more to fear from Islam­ists than has the West.  Par­tic­u­larly when these same Islam­ist groups have received ongo­ing sup­port from those very gov­ern­ments that are now cosy­ing up to Gaddafi.

Just to remind you, the reason I helped David Shayler in his whis­tleblow­ing on the crimes of MI5 and MI6 was because of just such a plot– the attemp­ted assas­sin­a­tion of Gad­dafi in 1996 that was fun­ded by the UK external intel­li­gence gath­er­ing agency, MI6.  In 1995 Shayler, then the head of the Libyan sec­tion in MI5,  was offi­cially briefed by his coun­ter­part in MI6, David Wat­son (oth­er­wise known as PT16/B), about an unfold­ing plot to kill Gad­dafi.  A Libyan mil­it­ary intel­li­gence officer, sub­sequently code-named Tun­worth, walked in to the Brit­ish embassy in Tunis and asked to speak to the res­id­ent spook. 

Tun­worth said he was the head of a “ragtag group of Islamic extrem­ists” (who sub­sequently turned out to have links to Al Qaeda — at a time when MI5 had begun to invest­ig­ate the group), who wanted to effect a coup against Col­onel Gad­dafi.  They needed fund­ing to do this, and that was where MI6 came in.  As a quid pro quo, Tun­worth prom­ised to hand over the two Lock­er­bie supsects for trial in Europe , which had for years been one of MI6’s pri­or­ity tar­gets — not to men­tion all those juicy oil con­tracts for BP et al.

Over the course of about 5 months, MI6 paid Tunworth’s group over $100,000, thereby becom­ing con­spir­at­ors in a murder plot.  Cru­cially, MI6 did not get the prior writ­ten per­mis­sion of their polit­ical mas­ter, the For­eign Sec­ret­ary, mak­ing this action illegal under the terms of the 1994 Intel­li­gence Ser­vices Act

Mani­festly, this coup attempt did not work — Gad­dafi is now a strong ally of our west­ern gov­ern­ments.  In fact, an explo­sion occurred beneath the wrong car in a caval­cade con­tain­ing Gad­dafi as he returned from the Libyan People’s Con­gress in Sirte.  But inno­cent people died in the explo­sion and the ensu­ing secur­ity shoot-out.

So, MI6 fun­ded an illegal, highly reck­less plot in a volat­ile part of world that res­ul­ted in the deaths of inno­cent people.  How more hein­ous a crime could there be?  But to this day, des­pite a leaked MI6 doc­u­ment that proved they knew the exist­ence of the pro­posed plot, and des­pite other intel­li­gence sources back­ing up Shayler’s dis­clos­ures, the UK gov­ern­ment has still refused to hold an enquiry.  Quite the oppos­ite — they threw the whis­tleblower in prison twice and tried to pro­sec­ute the invest­ig­at­ing journalists.

Some people may call me naïve for think­ing that the intel­li­gence agen­cies should not get involved in oper­a­tions like this.  Put­ting aside the retort that the spies often con­flate the idea of the national interest with their own, short-sighted career­ism, I would like to remind such cyn­ics that we are sup­posed to be liv­ing in mod­ern demo­cra­cies, where even the secret state is sup­posed to oper­ate within the rule of law and demo­cratic over­sight.  Illegal assas­sin­a­tion plots, the use of tor­ture, and false flag, state-sponsored ter­ror­ism should remain firmly within the retro, pulp-fiction world of James Bond.

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.

Terrorism Act used against Journalist

A wor­ry­ing art­icle in today’s Guard­ian by the indefatig­able Duncan Camp­bell, in which he reports that police are using the Ter­ror­ism Act (2000) to try to force a journ­al­ist to hand over inform­a­tion from a source.

This issue is the scared cow of journ­al­ism – that they never reveal their sources. To do so would imme­di­ately deter whis­tleblowers from speak­ing in con­fid­ence to the media, and gov­ern­ment crimes and lies would remain secret. The pro­tec­tion of journ­al­istic sources con­trib­utes to safe­guard­ing our demo­cracy, as legis­la­tion such as the Free­dom of Inform­a­tion Act (2000) is effect­ively tooth­less when up against the inner work­ings of the state.

Because of this, journ­al­ists with integ­rity in this coun­try and abroad are will­ing to risk prison rather than hand over their notes. As Camp­bell remarks, this happened to Mar­tin Bright in 2000 when he was Home Affairs Editor at The Observer. The Met­ro­pol­itan Police Spe­cial Branch went crash­ing into the offices on Far­ring­don Road, demand­ing that he hand over all his notes on the Shayler case. More bizar­rely, they also deman­ded a let­ter Shayler had sent to The Guard­ian, even though it had already been pub­lished in the news­pa­per. Thank­fully for Mar­tin, the National Union of Journ­al­ists sup­por­ted him, and the police even­tu­ally backed off.

The fact that the police are using the Ter­ror­ism Act as is a wor­ry­ing new devel­op­ment. But it’s not just pro­duc­tion orders from the police that journ­al­ists and news­pa­pers have to be wor­ried about. The author­it­ies have a range of weapons in their arsenal if they choose to sup­press inform­a­tion eman­at­ing from inner gov­ern­ment circles or the intel­li­gence world. And yet it is within these very circles that the most hein­ous crimes and viol­a­tions are com­mit­ted, and whence the most sig­ni­fic­ant whis­tleblowers tend to emerge. Think Dr David Kelly, David Shayler, Kath­er­ine Gun.

So, what else can the author­it­ies use to sup­press valid cri­ti­cism? Well, firstly and most notori­ously, we have the Offi­cial Secrets Act in the UK. This does not just pre­vent intel­li­gence officers and noti­fied gov­ern­ment offi­cials from ever speak­ing to any­one out­side the agency about any­thing, ever (Sec­tion 1(1)). Slightly less well known is Sec­tion 5, which makes it a crime for any journ­al­ist to receive or eli­cit inform­a­tion from these whis­tleblowers that dam­ages “national secur­ity” (the term to this day remains undefined). Of course, as we saw in the Shayler case, the gov­ern­ment is always extremely reluct­ant to cross the media and enforce this, so it is usu­ally just the unfor­tu­nate whis­tleblower who is hung out to dry.

If the threat of the OSA fails, the gov­ern­ment can always find a tame judge to issue an emer­gency injunc­tion. Again, this happened in the Shayler case, when an injunc­tion was taken out both against him and the UK’s national media. Need­less to say, the injunc­tion against the media was dropped (even this gov­ern­ment quailed at the pro­spect of tak­ing on News Inter­na­tional and the Mail group), but remains in place to this day against the hap­less whistleblower.

This injunc­tion is no small thing. The government’s law­yers have used it to frighten off pub­lish­ers from even look­ing at a novel (that’s right – a work of fic­tion) that Shayler wrote in 1998. Let­ters winged their way from gov­ern­ment law­yers to UK pub­lish­ers in Lon­don in 1999. And when Shayler built a web­site, hos­ted by Tab­net in Cali­for­nia, the gov­ern­ment wrote to them point­ing out that there was an injunc­tion in place and ask­ing for the site to be taken down. Tab­net gently poin­ted out that per­haps the Brit­ish gov­ern­ment had for­got­ten about 1776, and con­tin­ued to host the site.

If the OSA and injunc­tions are not enough, we also have the notori­ous D Notice Com­mit­tee (now rebranded as the Defence Press and Broad­cast­ing Advis­ory Com­mit­tee), a body that can block pub­lic­a­tion of a story by issu­ing a notice at the say-so of the gov­ern­ment. Very appro­pri­ate in a so-called demo­cracy. What makes it worse is that the Com­mit­tee is made up of volun­teers from amongst the great and the good from the media world, as well as rep­res­ent­at­ives from gov­ern­ment depart­ments. These guys, senior edit­ors and TV exec­ut­ives, enter the charmed inner circle and start to police their own industry. It’s amaz­ing how quickly new appointees go nat­ive and fight the government’s corner.

So there you have it – a whole bat­tery of laws to pro­tect the Brit­ish Estab­lish­ment from the scru­tiny and con­struct­ive cri­ti­cism of the media. When a journ­al­ist of integ­rity stands up to the author­it­ies, we should all sup­port them. They are provid­ing a cru­cial ser­vice of vent­il­a­tion and account­ab­il­ity for our retreat­ing demo­cracy. I wish Shiv Malik, the freel­an­cer at the eye of the cur­rent storm, the very best.

 

Legal doublethink re whistleblowers — my CPBF article, July 2006

Thanks to Wikileaks the concept of whis­tleblow­ing is once again, rightly, back in the prime-time news slots.

To high­light the Brit­ish legal double­think when it comes to whis­tleblow­ing cases, I repro­duce below an art­icle I wrote in 2006 for the excel­lent UK Cam­paign for Press and Broad­cast­ing Free­dom organ­isa­tion (CPBF).

Basic­ally, the rul­ing stated that a whis­tleblower can­not repeat their own dis­clos­ures in pub­lic, even though any­one else in the world can:

Hogarth_judge In 2006 I hadn’t heard of Mr “Justice” Eady (he had yet to reach his max­imum velo­city), but he seems to have built up of bit of form since then.  He is now most notori­ous for his pun­it­ive rul­ings in many “libel tour­ismcases and celeb sex scan­dals, not to men­tion the odi­ous concept of the super-injunction, start­lingly exem­pli­fied in the Trafigura case about alleg­a­tions of dump­ing toxic waste off the Ivory Coast — one of Wikileaks’s earlier media suc­cesses.

Obvi­ously Eady, the man in charge of rul­ing on UK free­dom of expres­sion cases, was the per­son to go to if you had some­thing to hide.

Thank­fully he was replaced earlier this year by Michael Tugend­hat QC, who flu­ently rep­res­en­ted the media’s corner dur­ing the Shayler whis­tleblow­ing years, and some of Eady’s most egre­gious decisions have already been over­turned by his successor.

 

CPBF_Logo  Another suc­cess for Brit­ish justice — Annie Machon (31÷7÷06)

It was another resound­ing suc­cess for Brit­ish justice, accord­ing to Annie Machon. Mr Justice Eady gran­ted a per­man­ent injunc­tion against David Shayler in the High Court today (Fri­day 28 July). In a breath­tak­ing rul­ing, Eady stated that David was not entitled to present evid­ence or cross-examine his accusers (again), but instead issued a sum­mary judge­ment based on asser­tions made by MI5.

This means that David can now only talk about a restric­ted range of dis­clos­ures — spe­cific­ally what appeared in the Mail on Sunday on 24 August 1997. This means that he can­not talk about a whole range of top­ics which are in the pub­lic domain and have already been cleared via the injunc­tion and for the pub­lic­a­tion of my book, Spies, Lies and Whis­tleblowers.

Spe­cific­ally, this means that, while I and the rest of the world can talk about state-sponsored false-flag ter­ror­ism, includ­ing the Gad­dafi plot, David is banned. Very con­veni­ent when the 911 cam­paign is tak­ing off.

The tem­por­ary injunc­tion was issued in Septem­ber 1997 on the expli­cit under­stand­ing that a full legal hear­ing would be needed before it could be made per­man­ent. David has now been denied this.

Also, the injunc­tion has been abused repeatedly, for example allow­ing the gov­ern­ment to spin lies against him when he wished to reveal the wrong­ful con­vic­tion of two inno­cent Palestini­ans, Samar Alami and Jawad Bot­meh, for the bomb­ing of the Israeli embassy in Lon­don in 1994. Also, when he tried to alert the gov­ern­ment to murder and a major ter­ror­ist attack organ­ised by MI6 officers in the Gad­dafi plot, he did so leg­ally via the injunction.

For his pains, he was the one thrown in prison in Paris in 1998.

The injunc­tion has also repeatedly been used to intim­id­ate journ­al­ists (one of whom was tried and con­victed) and to stop the media invest­ig­at­ing the crimin­al­ity of MI5 and MI6. With this rul­ing, the judge has also abol­ished at one stroke the media’s right to pub­lish whis­tleblowers’ testi­mony if they can argue it caused no dam­age to national security.

If any future whis­tleblower emerges from the intel­li­gence ser­vices, and is injunc­ted, the media has lost this defence, enshrined by par­lia­ment in crim­inal law (Sec­tion 1.5 of the OSA). And why is an injunc­tion neces­sary any­way? There already exists a crim­inal sanc­tion under the Offi­cial Secret Act. The judge was kind enough to say that the injunc­tion was for David’s own good and would stop him hav­ing to break the OSA again! We are through the look­ing glass.

Yours in won­der­land, Annie