Magna Carta versus Snoopers’ Charter

black_sheep_text_OK, this has to be a bleed­ing obvi­ous point, but I feel moved to make it any­way.

After the bru­tal Wool­wich murder of  Drum­mer Lee Rigby,  there were calls from the Brit­ish securo­crats to resur­rect the dis­cred­ited Com­mu­nic­a­tions Data bill — aka the Snoop­ers’ Charter.  Cap­it­al­ising on the nation’s shock, they believed it was the right time to push through a par­tic­u­larly dra­coni­an piece of legis­la­tion, as I wrote at the time.

The aim of the Snooper’s Charter is to store all the meta-data of our com­mu­nic­a­tions in the UK, which means they can poten­tially be used as evid­ence against us at some neb­u­lous future point if the leg­al goal­posts shift — as they seem to be doing at an alarm­ing rate these days.

Not only are act­iv­ists now being called “domest­ic extrem­ists” or “ter­ror­ists”, but the concept of secret courts seems to be meta­stas­ising at an alarm­ing rate — it is not longer just a concept used in immig­ra­tion and now civil courts, it has reached the giddy heights of the Supreme Court in the UK, with the secret hear­ings around the Ira­ni­an Mel­lat bank. Top UK Law Lord Neuber­ger was recently quoted, in the Daily Mail of all places, as say­ing that secret justice is no justice.

But I digress. Post-Wool­wich, the securo­crats were over­taken by events. The cour­ageous Edward Snowden blew the whistle on the fact that the NSA and its pals like GCHQ are already hoover­ing up all our elec­tron­ic com­mu­nic­a­tions, as well as spy­ing on top politi­cians. As a res­ult the securo­crats have gone to ground, but no doubt they will try to slith­er out again soon.

Or per­haps not — today still fur­ther sur­veil­lance hor­rors emerged as a res­ult of the Snowden dis­clos­ures: the UK listen­ing post GCHQ, which has long had an unhealth­ily inces­tu­ous rela­tion­ship with the NSA, has gone to the next level with the “Total Mas­tery of the Inter­net” pro­gramme, code­named “TEMPORA.

The repor­ted cap­ab­il­it­ies of TEMPORA are huge — GCHQ can tap into all the inform­a­tion flow­ing through the trans-Atlantic fibre optic cables and bey­ond. It is truly suck­ing on the fire hydrant of inform­a­tion

This should be gobsmack­ing news, but the concept was already repor­ted in The Register 4 years ago. The trouble is, nobody really cared then or just thought it was a bunch of geeks being para­noid. Now this is glob­al news thanks to the brave actions of a whis­tleblower.

One has to won­der if the UK gov­ern­ment is so keen to ram the Snoop­ers’ Charter into law as a ret­ro­grade jus­ti­fic­a­tion for the endem­ic PRISM and TEMPORA snoop­ing that has already been going on for years? And let’s not for­get the old pro­to­type snoop­ing programe, ECHELON

As a lead­ing European pri­vacy cam­paign­er recently wrote, by the year 1215 Brit­ish bar­ons had more basic rights under the Magna Carta than we mod­ern day serfs can pos­sibly aspire to now.

How can we be going back­wards, so fast?

O tem­pora, o mores indeed.…. some clas­si­cist, some­where in the bowels of the Brit­ish intel­li­gence agen­cies, is hav­ing a laugh.

UK spies get a B+ for intrusive surveillance in 2010

Black_sheep?The quan­go­crats charged with over­see­ing the leg­al­ity of the work of the UK spies have each pro­duced their undoubt­ably author­it­at­ive reports for 2010. 

Sir Paul Kennedy, the com­mis­sion­er respons­ible for over­see­ing the inter­cep­tion of com­mu­nic­a­tions, and Sir Peter Gib­son, the intel­li­gence ser­vices com­mis­sion­er, both pub­lished their reports last week.  

Gib­son has, of course, hon­our­ably now stood down from his 5-year over­sight of MI5, MI6, and GCHQ in order to head up the inde­pend­ent enquiry into spy com­pli­city in tor­ture. 

And both the reports say, nat­ur­ally, that it’s all hunky-dorey.  Yes, there were a few mis­takes (well, admis­trat­ive errors — 1061 over the last year), but the com­mis­sion­ers are con­fid­ent that these were neither malign in intent nor an indic­a­tion of insti­tu­tion­al fail­ings. 

So it appears that the UK spies gained a B+ for their sur­veil­lance work last year.

Both com­mis­sion­ers pad out their reports with long-win­ded descrip­tions of what pre­cisely their role is, what powers they have, and the full, frank and open access they had to the intel­li­gence officers in the key agen­cies. 

They seem sub­limely unaware that when they vis­it the spy agen­cies, they are only giv­en access to the staff that the agen­cies are happy for them to meet — intel­li­gence officers pushed into the room, primped out in their party best and scrubbed behind the ears — to tell them what they want to hear. 

Any intel­li­gence officers who might have con­cerns have, in the past, been rig­or­ously banned from meet­ing those charged with hold­ing the spies to demo­crat­ic account.….

.…which is not much dif­fer­ent from the over­sight mod­el employed when gov­ern­ment min­is­ters, the notion­al polit­ic­al mas­ters of MI6, MI6 and GCHQ, sign off on bug­ging war­rants that allow the aggress­ive invest­ig­a­tion of tar­gets (ie their phones, their homes or cars, or fol­low them around).  Then the min­is­ters are only giv­en a sum­mary of a sum­mary of a sum­mary, an applic­a­tion that has been titrated through many mana­geri­al, leg­al and civil ser­vice fil­ters before land­ing on their desks.  

So, how on earth are these min­is­ters able to make a true eval­u­ation of the worth of such an applic­a­tion to bug someone? 

They just have to trust what the spies tell them — as do the com­mis­sion­ers. 

The Age of Transparency?

Black_sheep_text?Well, this is an inter­est­ing case in the US.  Thomas Drake, a former seni­or exec­ut­ive at the Amer­ic­an Nation­al Secur­ity Agency (NSA), the US elec­tron­ic eaves­drop­ping organ­isa­tion, is being charged under the 1917 US Espi­on­age Act for allegedly dis­clos­ing clas­si­fied inform­a­tion to a journ­al­ist about, gasp, the mis­man­age­ment, fin­an­cial waste and dubi­ous leg­al prac­tices of the spy­ing organ­isa­tion.  These days it might actu­ally be more news­worthy if the oppos­ite were to be dis­closed.…

How­ever, under the terms of the Espi­on­age Act, this des­ig­nates him an enemy of the Amer­ic­an people on a par with bona fide trait­ors of the past who sold secrets to hos­tile powers dur­ing the Cold War.

It strikes me that someone who reports mal­prac­tice, mis­takes and under-per­form­ance on the part of his (secret­ive) employ­ers might pos­sibly be someone who still has the motiv­a­tion to try to make a dif­fer­ence, to do their best to pro­tect people and serve the genu­ine interests of the whole coun­try.  Should such people be pro­sec­uted or should they be pro­tec­ted with a leg­al chan­nel to dis­clos­ure? 

Thomas Drake does not sound like a spy who should be pro­sec­uted for espi­on­age under the USA’s anti­quated act, he sounds on the avail­able inform­a­tion like a whis­tleblower, pure and simple.  But that won’t neces­sar­ily save him leg­ally, and he is appar­ently facing dec­ades in pris­on.  Pres­id­ent Obama, who made such a song and dance about trans­par­ency and account­ab­il­ity dur­ing his elec­tion cam­paign, has an even more egre­gious track record than pre­vi­ous pres­id­ents for hunt­ing down whis­tleblowers — the new “insider threat”.

This, of course, chimes with the Brit­ish exper­i­ence.  So-called left-of-centre polit­ic­al can­did­ates get elec­ted on a plat­form of trans­par­ency, free­dom of inform­a­tion, and an eth­ic­al for­eign policy (think Blair as well as Obama), and promptly renege on all their cam­paign prom­ises once they grab the top job. 

In fact, I would sug­gest that the more pro­fessedly “lib­er­al” the  gov­ern­ment, the more it feels empowered to shred civil liber­ties.  If a right-wing gov­ern­ment were to attack basic demo­crat­ic freedoms in such a way, the offi­cial oppos­i­tion (Democrats/Labour Party/whatever) would be obliged to make a show of oppos­ing the meas­ures to keep their core voters sweet.  Once they’re in power, of course, they can do what they want.

One stark example of this occured dur­ing the passing of the Brit­ish Offi­cial Secrets Act (1989) which, as I’ve writ­ten before, was spe­cific­ally designed to gag whis­tleblowers and pen­al­ise journ­al­ists.  The old OSA (1911) was already in place to deal with real trait­ors.

And who voted against the passing of this act in 1989?  Yes, you’ve guessed it, all those who then went on to become Labour gov­ern­ment min­is­ters after the 1997 Labour elec­tion land­slide — Tony Blair, Jack Straw, the late Robin Cook and a scrum of oth­er rather for­get­table min­is­ters and Attor­ney Gen­er­als.….  And yet it was this very New Labour gov­ern­ment in the UK that most often used the OSA to halt the free-flow of inform­a­tion and the dis­clos­ures of informed whis­tleblowers.  Obama has indeed learnt well.

It’s an oldie but still a good­ie: as one of my law­yers once wryly told me, it doesn’t mat­ter whom you vote for, the gov­ern­ment still gets in.….

Can the product of bugs be used as court evidence in the UK?

Black_sheep?_textAn inter­est­ing story on Chan­nel 4 TV news today: four Lon­don police officers are being pro­sec­uted for beat­ing up Babar Ahmad in 2003 while arrest­ing him on sus­pi­cion of ter­ror­ism charges.  And it turns out that the key evid­ence for the pro­sec­u­tion comes not from Ahmad’s com­plaint, nor from pho­to­graphs of his injur­ies, but from the product of an eaves­drop­ping device, more com­monly known as a bug, planted in his home by the UK Secur­ity Ser­vice, MI5.

It’s inter­est­ing in itself that MI5 has released this inform­a­tion for court pro­ceed­ings against Met counter-ter­ror­ism officers.  I shall res­ist spec­u­lat­ing now, but shall be watch­ing devel­op­ments with interest.

But the point I want to make quickly today is about the use of inter­cept mater­i­al as leg­al evid­ence in UK courts.  This can poten­tially be cru­cial for law­yers when speak­ing to their cli­ents, journ­al­ists who wish to pro­tect their sources, polticial act­iv­ists, and those who simply wish to pro­tect their inher­ent right to pri­vacy as the encroach­ing elec­tron­ic sur­veil­lance state con­tin­ues to swell.

It can also be poten­tially use­ful inform­a­tion for MPs talk­ing to their con­stitu­ents.  Indeed, return­ing to the years-long case of Babar Ahmad, there was a media furore in 2008 when it was revealed that the Met had author­ised the bug­ging of his con­ver­sa­tions with his MP Sad­iq Khan dur­ing pris­on vis­its.  

And who was the com­mand­ing officer who author­ised this?  Step for­ward former Met Counter Ter­ror­ism supremo, Andy Hay­man, that much esteemed defend­er of Brit­ish civil liber­ties who recently sug­ges­ted “dawn raids” and “snatch squads ” be used against polit­ic­al act­iv­ists.

Unlike most oth­er west­ern coun­tries, the UK does not allow the use of tele­phone inter­cept as evid­ence in a court of law.  As I’ve writ­ten before, it’s a hangover from the cold war spy­ing game.  MI5 has tra­di­tion­ally seen phone taps as a source of intel­li­gence, not evid­ence, des­pite the fact that much of their work is notion­ally more evid­en­tially based in the 21st cen­tury.  It also still remains a sub­ject of debate and a fiercely fought rear­gard action by the spies them­selves, who claim telecheck is a “sens­it­ive tech­nique”. 

As if we don’t all know that our phones can be bugged.….

How­ever, eaves­drop­ping devices that are planted in your prop­erty — your home, your office, even your car — can indeed pro­duce evid­ence that can be used against you in a court of law.   All this requires a Home Office War­rant (HOW) to make it leg­al, but Home Sec­ret­ar­ies are tra­di­tion­ally reluct­ant to refuse a request in the interests of “nation­al secur­ity”.  Moreover, if the own­er of the prop­erty agrees to a bug, even without a HOW, they can be leg­ally used.  So if you live in ren­ted accom­mod­a­tion, befriend your land­lord!

Not a lot of people know all that — but we should. 

Bleat: Knowledge is power — the MI6 prime directive

Black_sheep?By way of ran­dom link­age, I stumbled across this little gem of an art­icle by that old spook apo­lo­gist extraordin­aire, Con Cough­lin.  He’s writ­ing about the first pub­lic speech by a serving head of (SIS) MI6, which was addressed to the Soci­ety of Edit­ors last autumn.  Dear old Con’s inter­pret­a­tion of events is slightly dif­fer­ent from mine at the time.….

The para­graph that leapt out at me was this:

Sir John Saw­ers, the cur­rent “C” in charge of MI6, made much the same point yes­ter­day in his ground-break­ing speech to the Soci­ety of Edit­ors. He explained that acquir­ing secret intel­li­gence, and keep­ing it secret, remains his organisation’s fun­da­ment­al object­ive.”

Well, excuse my naiv­ety but I thought that the role of the Brit­ish intel­li­gence agen­cies was to pro­tect “nation­al secur­ity”, whatever that might mean accord­ing to the fla­vour of the day, not merely to acquire and keep secrets.

Well, I obvi­ously remain irre­deem­ably ideal­ist­ic.  Per­haps, as my fath­er hope­fully states on occa­sion, one day I’ll even­tu­ally grow up.….

 

Just how many unaccountable spy organisations are out there in the UK?

Black_sheep?Unsuc­cess­fully res­ist­ing the tempta­tion to say that the obvi­ous ones (MI5, MI6 and GCHQ) are still pretty unac­count­able, I was intrigued by a few recent art­icles in The Guard­i­an

George Mon­bi­ot, someone I have enorm­ous respect for but don’t always see eye-to-swiv­el­ling-eye with, wrote an excel­lent piece about the after­shocks of the Mark Kennedy/undercover cop scan­dal earli­er this year. 

Mon­bi­ot calls for the abol­i­tion of that demo­crat­ic­ally unac­count­able seni­or plod organ­isa­tion and PLC, the Asso­ci­ation of Chief Police Officers (ACPO).  This was the organ­isa­tion under whose aegis the under­cov­er cops spied on hap­less envir­on­ment protest­ors — the very people who are now being encour­aged to appeal against their con­vic­tions by Dir­ect­or of Pub­lic Pro­sec­u­tions, no less.

Mon­bi­ot quotes a couple of acronyms cov­er­ing this shady world of police spy­ing: NPOIU and NECTU.   But in anoth­er Guard­i­an art­icle today — about the police tak­ing pre-empt­ive steps against so-called anarch­ists in the run-up to the roy­al wed­ding — I saw this:

The Met is also get­ting intel­li­gence from the Fix­ated Threat Assess­ment Centre, a police unit set up in 2006 togeth­er with men­tal health agen­cies to identi­fy indi­vidu­als who are obsessed with mem­bers of the roy­al fam­ily, politi­cians or celebrit­ies.”

Que?  When was this unit set up, and who runs it?  What about data pro­tec­tion and pri­vacy of med­ic­al records?  Or are these notions already just quaint ana­chron­isms, and a de facto Big Broth­er data­base is already in place?

Per­haps it is time for ACPO to make a clean breast of all the little group­ings it has set up over the last dec­ade.….

The role of intelligence agencies within a democracy

I recently stumbled across this excel­lent art­icle in the Trin­id­ad Express, of all places.  It appears that the state of Trin­id­ad and Tobago is in the throes of debat­ing the legit­im­ate role of intel­li­gence agen­cies with­in a demo­cracy.

Alana Wheel­er, a Ful­bright Schol­ar with a Mas­ters degree in Nation­al Secur­ity Stud­ies, con­trib­utes a clear and well-argued art­icle that gets to the heart of these issues; what is “nation­al secur­ity” and what is the best way to pro­tect a nation’s integ­rity with­in a leg­al, pro­por­tion­ate and demo­crat­ic frame­work?

If the demo­crat­ic move­ments with­in coun­tries like Tunisia, Egypt and Libya are allowed to coalesce organ­ic­ally and unhindered, no doubt this also be a key issue for their new con­sti­tu­tions — espe­cially after dec­ades of repres­sion and fear meted out by bru­tal securo­crats.

So why the hell can’t we have such an informed debate about these issues in the “mature demo­cra­cies” of UK or the USA?

Bleat: the assassination of dissidents

Black_sheep?OK, so I’m not sure if my concept of Bleats (half blog, half tweet) is being grasped whole­heartedly.  But so what — it makes me laugh and the Black Sheep shall perservere with a short blog post.….

So I’m a bit puzzled here.  UK Prime Min­is­ter Dave Camer­on is quoted in today’s Daily Tele­graph as say­ing that:

It is not accept­able to have a situ­ation where Col­on­el Gad­dafi can be mur­der­ing his own people using aero­planes and heli­copter gun­ships and the like and we have to plan now to make sure if that hap­pens we can do some­thing to stop it.”

But do his Amer­ic­an best bud­dies share that, umm, humane view?  First of all they have the CIA assas­sin­a­tion list which includes the names of US cit­izens (ie its own people); then those same “best bud­dies” may well resort to assas­sin­at­ing Wikileaks’s Juli­an Assange, prob­ably the most high pro­file dis­sid­ent in inter­na­tion­al and dip­lo­mat­ic circles at the moment; plus they are already waging remote drone war­fare on many hap­less Middle East­ern coun­tries — Yeman, Afgh­anistan, Pakistan.….

Oh, and now the UK gov­ern­ment seems poised to launch cov­ert spy drones into the skies of Bri­tain.  Even the UK’s most right-wing main­stream news­pa­pers, the Daily Tele­graph and the Daily Mail, expressed con­cern about this today.  Appar­ently these drones have yet to be weapon­ised.….

It’s a slip­pery slope down to an Orwellian night­mare.

 

BBC article: could 7/7 have been prevented?

Peter Taylor, a respec­ted journ­al­ist at the BBC, argues that if there had been more coöper­a­tion between MI5 and region­al police Spe­cial Branches, then the 7/7 bomb­ings in Lon­don in 2005 could have been pre­ven­ted.  His thes­is appears to be that MI5 did not work closely enough with the police (the exec­ut­ive branch) of the UK’s intel­li­gence com­munity: the aptly-named Oper­a­tion Crevice has exposed the cracks in the uni­fied pub­lic façade of the UK intel­li­gence com­munity.

How­ever, Taylor assures us that this prob­lem is in the past, with MI5 officers and Spe­cial Branch police now hap­pily work­ing side by side in region­al offices across the UK.  So that’s OK then.

It con­tin­ues to sur­prise me that seasoned Brit­ish journ­al­ists repeatedly fall into the post-9/11 group-think of the USA — that ter­ror­ism is a new phe­nomen­on.  Rather start­lingly, Taylor’s art­icle even asserts that the FBI had the Crevice inform­a­tion in real-time, while the West Yorks SB was left in the dark.

Those in the UK with a memory longer than a mayfly’s will be aware that this coun­try endured 30 years of Irish Repub­lic­an ter­ror­ism, and dur­ing the 1990s MI5 had lead respons­ib­il­ity for invest­ig­at­ing this threat.  So from 1993 the spooks did indeed work side-by-side with their region­al SB counter-parts across the coun­try.  Dur­ing this peri­od the emphas­is was on gath­er­ing both intel­li­gence to pre-empt­ively thwart ter­ror­ist plots and also evid­ence to use in the ensu­ing court cases.  And there were some not­able suc­cesses.

So what changed in the fol­low­ing dec­ade?  Did the spooks retreat back behind the bar­ri­cades of their Lon­don HQ, Thames House, as the ink dried on the Good Fri­day Agree­ment?  Were the hard-won les­sons of the 1990s so quickly for­got­ten?

Well, cer­tainly oth­er les­sons from the civil war in Nort­ern Ire­land appear to have been expunged from the col­lect­ive intel­li­gence memory.  For example, the use of tor­ture, mil­it­ary tribunals, intern­ment and curfews were all used extens­ively in the early years of the NI con­flict and all were spec­tac­u­larly counter-pro­duct­ive, act­ing as a recruit­ing ground for new gen­er­a­tions of ter­ror­ists.  Yet these prac­tices now once again appear to be impli­citly con­doned by MI5 and MI6 in the USA’s bru­tal “war on ter­ror”.

So one would hope that this new BBC pro­gramme calls for a reapprais­al of our intel­li­gence infra­struc­ture.  Why should we mind­lessly con­tin­ue to accept the status quo, when this res­ults in les­sons being for­got­ten and mis­takes being repeated?  How about the BBC call­ing for a root and branch review of the threats the UK real­ist­ic­ally faces, and the most efeect­ive way to guard against them, while work­ing with­in the demo­crat­ic pro­cess?

 

 

New attack on Wikileaks

I read this rather wor­ry­ing art­icle in The Inde­pend­ent today.  I know that this is refrac­ted through the main­stream media, but if it is accur­ate.…

Why am I so con­cerned?  Well, the art­icle appears to show that vital cod­ing to enable secret sub­mis­sions from poten­tial whis­tleblowers across the world was removed from the Wikileaks site a few months ago.

Now, unfor­tu­nately I’m not a geek, but I pre­sume this means that poten­tial whis­tleblowers have been unable to sub­mit inform­a­tion to Wikileaks over the last few months — just at the time when the web­site hit the glob­al con­scious­ness.

But the worst case scen­ario would be if, just when poten­tial whis­tleblowers are most likely to have become aware of the site and want to use it, the pro­tec­tion of anonym­ity was unex­pec­tedly and sur­repti­tiously removed from the web­site when they make sub­mis­sions.

Either way, we urgently need cla­ri­fic­a­tion.